Arrangement. Commencing on the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Person: (a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto. (b) Upon the transfer of all Company Shares to Parent: (i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares; (ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof; (iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date; (iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof; (v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law; (vi) The Company Option Plan shall be cancelled; and (vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Arrangement. Commencing on 3.1 At the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order sequence set out therein without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share all Pendaries Common Shares (other than the Pendaries Dissenting Shares and Company Pendaries Common Share outstanding immediately prior to the Effective Time Shares held by UPC and its affiliates) shall be and shall be deemed to be irrevocably transferred to Parent UPC in exchange for, in for Ultra Common Shares on the basis of one and fifty-eight one hundredths of one (1.58) fully paid and non-assessable Ultra Common Shares for each case, that number of shares of Parent one (1.00) Pendaries Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.Share; and
(b) Upon the transfer of all Company with respect to each Pendaries Common Share to which subsection 3.1 (a) applies (other than those Pendaries Common Shares to Parent:which section 3.3 applies):
(i) each the holder thereof shall (A) cease to be a holder of such Company Shares shall cease to be the holder of such Company Shares and share, (B) such holder’s 's name shall be removed from the applicable securities register of Company Pendaries Common Shares with respect to such shares, (C) be allotted and issued, as fully paid and non-assessable shares, the number of Ultra Common Shares calculated in the basis set forth in subsection 3.1(a) (subject to section 3.2), and (D) such holder's name shall be added to the register of Ultra Common Shares with respect to such Ultra Common Shares;; and
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will UPC shall be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Pendaries Common Stock Shares as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(viic) without all Pendaries Options shall be cancelled.
3.2 No certificates representing fractional Ultra Common Shares will be issued. In the event that the exchange ratios referred to herein would in any action on the part of Parent, the Company or the case otherwise result in a holder of that certain warrant a Pendaries Common Share being entitled to purchase Company a fractional Ultra Common Share, an adjustment shall be made to the next highest whole number of Ultra Common Shares dated as and a certificate for the resulting whole number of October 5Ultra Common Shares will be issued. In calculating such fractional interests, 2007 issued all Pendaries Common Shares held by the Company (the “Warrant”), the Warrant a beneficial holder of Pendaries Common Shares shall be terminated as of the Closing and shall be of no further force or effectaggregated.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, without any further act or formality, by virtue of the Plan of Arrangement and without any further action on the part of Spectra, ▇▇▇▇▇▇▇, Subco or any Spectra Shareholder, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personoccur:
(a) Each Class A Convertible Preferred ShareSpectra shall issue the UpTick Shares;
(b) Subco, Class B Convertible Preferred Shareon behalf of the Companies, Class C Convertible Preferred Share will pay to each holder of a Spectra Option, a Spectra Warrant and Company Common Share outstanding immediately prior to a 2001 Employee Bonus, the Effective Time Option Consideration, the Warrant Consideration and the Bonus Consideration, respectively, which shall be paid in the amounts and in the manner provided for in Section 2.8 hereof;
(c) each of the Spectra Shares, other than Spectra Shares in respect of which a Notice of Dissent has been given and other than Spectra Shares owned by Eclipse, shall be and shall be deemed to be irrevocably transferred to Parent Subco in exchange forfor the Purchase Price provided in Section 2.5 hereof, as adjusted and less the payments set forth in Sections 2.5 and 2.7 hereof and subject to the Holdback Amount set forth herein, all of which shall be paid in the manner provided for in Section 2.7 hereof and, as to the Holdback Amount, Section 2.9(a) hereof;
(d) each caseof the Eclipse Shares shall be and shall be deemed to be transferred to Subco in exchange for the Eclipse Purchase Price provided in Section 2.5 hereof, that number as adjusted and less the payments set forth in Sections 2.5 and 2.7 hereof and subject to the Holdback Amount set forth herein, all of shares which shall be paid to the Eclipse Shareholders in the manner provided for in Section 2.7 hereof and, as to the Holdback Amount, Section 2.9(a) hereof;
(e) each of Parent Common Stock as the Spectra Shares in respect of which a Notice of Dissent has been given shall be and shall be deemed to be cancelled pursuant to Section 2.6 hereof with Spectra being obligated to pay therefor the amount determined in accordance with the formula set out on Exhibit A attached hereto.Section 2.6 hereof;
(bf) Upon each of the transfer of all Company Spectra Shares owned by Eclipse shall be deemed to Parentbe cancelled for no consideration;
(g) with respect to each Spectra Share transferred or cancelled in accordance with Sections 2.3(c) and (e) above and with respect to each Eclipse Share transferred in accordance with Sections 2.3(d) and (f) above:
(i) each the registered holder of such Company Shares thereof shall cease to be the registered holder of such Company Shares share and such holder’s the name of the holder thereof shall be removed from the applicable securities register of Company SharesSpectra Shareholders or the Eclipse Shareholders, as applicable, as of the Effective Time;
(ii) legal the certificate representing such share shall be deemed to have been cancelled as of the Effective Time;
(iii) the holder thereof shall be deemed to have executed and beneficial title delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Company Shares will vest share in Parent and Parent will accordance with Section 2.3(c), (d), (e) or (f) above; and
(iv) Subco shall be and shall be deemed to be the transferee and legal and beneficial owner of such Company Shares shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder Subco shall be entered in the register of holders of Parent Common Stock Spectra Shareholders and the Eclipse Shareholders, as applicable, as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledshare; and
(viih) without any action on Subco, Eclipse and Spectra shall amalgamate pursuant to the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectAmalgamation.
Appears in 1 contract
Sources: Combination Agreement (Sanchez Computer Associates Inc)
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred each Target Share and Company Common Share outstanding immediately prior to the Effective Time (other than Target Shares in respect of which a Shareholder has validly exercised Dissent Rights) shall be directly transferred and be deemed assigned by the Shareholders to be irrevocably transferred to Parent Acquisition Sub (free and clear of any Encumbrances) in exchange forconsideration for the Per Share Consideration, in each case, that number of shares of Parent Common Stock as determined payable or deliverable in accordance with Article 4 of this Plan of Arrangement and as provided under the formula set out on Exhibit A attached hereto.terms and conditions of the Arrangement Agreement and, where applicable, the Escrow Agreement;
(b) Upon the transfer each Target Share in respect of all Company Shares which a Shareholder has validly exercised Dissent Rights shall be directly transferred and assigned by such Shareholder to Parent:Acquisition Sub (free and clear of any Encumbrances) in accordance with Article 3; and
(c) with respect to each Target Share transferred and assigned in accordance with Subsection 2.3(a) or Subsection 2.3(b):
(i) each the registered holder of such Company Shares thereof shall cease to be the registered holder of such Company Shares Target Share and the name of such holder’s name registered holder shall be removed as of the Effective Time from the applicable securities register maintained by Target in respect of Company the Target Shares;
(ii) legal any certificate representing such Target Share registered in the name of the registered holder thereof shall be deemed to have been cancelled as of the Effective Time;
(iii) the registered and beneficial title holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Company Shares will vest Target Share in Parent accordance with Subsection 2.3(a) or Subsection 2.3(b), as applicable; and
(iv) Acquisition Sub shall be recorded as the registered holder of such Target Share so transferred and Parent will be assigned and shall be deemed to be the transferee and legal and beneficial owner of such Company Target Shares free and clear of any Encumbrances; provided that none of the foregoing will occur or will be entered in the applicable securities register deemed to occur unless all of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectforegoing occurs.
Appears in 1 contract
Arrangement. 3.1 Commencing on at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personexcept as otherwise provided herein:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share NAL GP shall be dissolved in accordance with the following:
(i) the stated capital of the shares of NAL GP shall be reduced to $1.00 in aggregate;
(ii) all of the property of NAL GP shall be distributed to NAL; and
(iii) NAL shall assume all of the liabilities and Company Common Share outstanding obligations of NAL GP;
(b) NAL Petroleum shall be dissolved in accordance with the following:
(i) the stated capital of the shares of NAL Petroleum shall be reduced to $1.00 in aggregate;
(ii) all of the property of NAL Petroleum shall be distributed to NAL; and
(iii) NAL shall assume all of the liabilities and obligations of NAL Petroleum;
(c) Addison LP shall be dissolved by virtue of the dissolution of NAL Petroleum pursuant to Section 3.1(b) and:
(i) all of the property of Addison LP shall be distributed to NAL; and
(ii) NAL shall assume all of the liabilities and obligations of Addison LP;
(d) the NAL Shares held by Dissenting Shareholders who have exercised Dissent Rights which remain valid immediately prior to the Effective Time shall, as of the Effective Time, be deemed to have been transferred to NAL (free and clear of any Liens) and, as of the Effective Time, such Dissenting Shareholders shall cease to have any rights as NAL Shareholders other than the right to be paid the fair value of their NAL Shares in accordance with Article 4;
(e) each issued and outstanding NAL Share (other than those held by Dissenting Shareholders) shall be, and shall be deemed to be, transferred to, and acquired by, Pengrowth (free and clear of any Liens) and, subject to Sections 5.5, 5.6 and 6.1, each Former NAL Shareholder shall be entitled to receive from Pengrowth in exchange for each such NAL Share, 0.86 of a Pengrowth Share;
(f) Pengrowth shall: (i) assume all of NAL’s covenants and obligations for the NAL Debentures under the NAL Debenture Indenture, such that the NAL Debentures shall become valid and binding obligations of Pengrowth; and (ii) provided that the other provisions of Article 11 of the NAL Debenture Indenture are complied with, the Supplemental Indenture shall become effective; and
(g) the Amended NAL DRIP shall become effective, all existing participants in the NAL DRIP will be deemed to be irrevocably transferred participants in the Amended NAL DRIP and any dividends declared but not paid prior to Parent the Effective Date to a person deemed to be a participant in exchange for, in each case, that number the Amended NAL DRIP will be automatically applied to the purchase of shares of Parent Common Stock as determined Pengrowth Shares in accordance with the formula set out on Exhibit A attached heretoterms and conditions of the Amended NAL DRIP.
3.2 With respect to each Former NAL Shareholder (other than a Dissenting Shareholder) at the Effective Time, upon the exchange of NAL Shares for Pengrowth Shares pursuant to Section 3.1(e):
(a) such Former NAL Shareholder shall be added to the register of holders of Pengrowth Shares;
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares Former NAL Shareholder shall cease to be the a holder of the NAL Shares so exchanged and the name of such Company Shares and such holder’s name Former NAL Shareholder shall be removed from the applicable securities register of Company SharesNAL Shareholders maintained by or on behalf of NAL as it relates to the NAL Shares so exchanged; and
(c) Pengrowth shall become the holder of the NAL Shares so exchanged and shall be added to the register of NAL Shareholders maintained by or on behalf of NAL.
3.3 NAL is hereby granted full power and authority, in name, place and stead of NAL GP, NAL Petroleum and Addison LP to execute, under seal or otherwise, swear to, acknowledge, deliver, and record or file, as the case may be, as and where required:
(a) any conveyance or other instrument which NAL deems necessary or appropriate to reflect the dissolution of NAL GP, NAL Petroleum and Addison LP pursuant to the terms of Section 3.1(a) (b) and (c);
(iib) legal and beneficial title any instrument required in connection with any election, designation or determination relating to such Company Shares will vest in Parent and Parent will be and be deemed to be NAL GP, NAL Petroleum or Addison LP under the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofIncome Tax Act (Canada) or other fiscal legislation;
(iiic) no fractional shares of Parent Common Stock shall any documents which NAL deems necessary or appropriate to be issued filed in connection with the dissolution of NAL GP, NAL Petroleum or Addison LP or the transactions contemplated by this Plan of Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(ivd) any document required to be filed with respect to each share any Governmental Authority in connection with the dissolution of Parent Common Stock issued to a former holder of Company SharesNAL GP, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company NAL Petroleum or Addison LP or the holders transactions contemplated by this Plan of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledArrangement; and
(viie) without any action other document or instrument on behalf of and in the part name of ParentNAL GP, the Company NAL Petroleum or the holder Addison LP as may be required to give effect to this Plan of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing Arrangement. The signing authority granted hereby is irrevocable and shall be survive the dissolution of no further force NAL GP, NAL Petroleum or effectAddison LP pursuant to this Plan of Arrangement.
Appears in 1 contract
Arrangement. Commencing on the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Person:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to Parent agrees that the Effective Time Arrangement shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined implemented in accordance with and subject to the formula set out on Exhibit A attached heretoterms and conditions contained in this Agreement and the Plan of Arrangement, and the Domestication, which forms part of the Arrangement, shall be implemented in accordance with Section 388 of the General Corporation Law of the State of Delaware (“GCL”).
(b) Upon The Arrangement shall become effective on the transfer Arrangement Effective Date and the steps to be carried out pursuant to the Arrangement shall become effective on the Arrangement Effective Date in the order set forth in the Plan of all Company Shares Arrangement.
(c) Parent agrees that as soon as reasonably practicable after the date hereof, Parent shall, in a manner acceptable to Parentthe Company, acting reasonably, pursuant to section 192 of the CBCA and in cooperation with the Company, prepare, file and diligently pursue a motion for the Interim Order, which shall provide, among other things:
(i) each holder for the calling, holding and conducting of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company SharesParent Shareholders’ Meeting;
(ii) legal and beneficial title for the class of persons to such Company Shares will vest in Parent and Parent will be and be deemed whom notice is to be the transferee and legal and beneficial owner of such Company Shares and will be entered provided in the applicable securities register respect of the Company as Arrangement and the sole shareholder thereofParent Shareholders’ Meeting and for the manner in which such notice is to be provided;
(iii) no fractional shares that the only requisite approval for the Arrangement Resolution shall be two-thirds of the votes cast on the Arrangement Resolution by shareholders of Parent Common Stock shall be issued as of the record date, present in connection with person or represented by proxy at the Arrangement, Parent Shareholders’ Meeting and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive voting as a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Datesingle class;
(iv) with respect to each share for the grant of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered Dissent Rights as contemplated in the register Plan of holders of Parent Common Stock as the registered holder thereofArrangement;
(v) without any action on for the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance notice requirements with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior respect to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal application to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price Court for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;Final Order; and
(vi) The Company Option Plan that the Parent Shareholders’ Meeting may be adjourned or postponed from time to time by Parent (with the prior written consent of the Company, not to be unreasonably withheld) without the need for additional approval of the Court.
(d) If the Interim Order is obtained and the Arrangement Resolution is passed at the Parent Shareholders’ Meeting, Parent shall forthwith thereafter take all actions necessary or desirable to submit the Arrangement to the Court and to apply to the Court for the Final Order in form and substance satisfactory to the Company, acting reasonably.
(e) Parent shall provide the Company’s legal counsel with a reasonable opportunity to review and comment upon a draft of all material to be filed with the Court in connection with the Arrangement prior to such material being filed with the Court, and all materials filed with the Court shall be cancelled; and
(vii) without subject to the prior review, comment and consent of Company. Parent shall also provide the Company’s legal counsel on a timely basis with copies of any action appearance and evidence served on Parent or its legal counsel in respect of the part of Parentproceedings for the Interim Order, the Company Final Order or any appeal therefrom and of any notice (written or oral) received by Parent indicating any intention to oppose the granting of the Interim Order or the holder of that certain warrant Final Order or to purchase Company Common Shares dated as of October 5appeal the Interim Order or the Final Order. Subject to applicable Laws, 2007 issued by Parent shall not file any material with the Company (Court in connection with the “Warrant”)Arrangement or serve any such material, the Warrant shall be terminated as of the Closing and shall agree not to modify or amend materials so filed or served, except as contemplated hereby or with the Company’s prior written consent, such consent not to be of no further force unreasonably withheld, conditioned or effectdelayed.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further authorization, act or formality required on the part of or by the Companyany person, Parent or any other Personexcept as expressly provided herein:
(a) Each Class A Convertible Preferred Shareeach Trust Unit Right shall be deemed transferred by the holder thereof to Harvest (free and clear of any Encumbrances, Class B Convertible Preferred Shareand notwithstanding any vesting conditions) in exchange for a cash payment from Harvest in respect of each Trust Unit Right equal to the greater of $0.01 and the amount, Class C Convertible Preferred Share if any, by which $10.00 exceeds the Exercise Price thereof (less all applicable withholding taxes) and Company Common Share the holder of such Trust Unit Right shall thereafter only have the right to receive the consideration to which they are entitled pursuant to this Section 2.3(a) and all Trust Unit Rights shall be deemed terminated and Harvest shall have no liabilities or obligations with respect to such Trust Unit Rights except pursuant to this Section 2.3(a);
(b) each Unit Award shall be deemed transferred by the holder thereof to Harvest (free and clear of any Encumbrances, and notwithstanding any vesting conditions) in exchange for a cash payment from Harvest equal to $10.00 (less all applicable withholding taxes) and the holder of such Unit Awards shall thereafter only have the right to receive the consideration to which they are entitled pursuant to this Section 2.3(b) and all Unit Awards shall be deemed terminated and Harvest shall have no liabilities or obligations with respect to such Unit Awards except pursuant to this Section 2.3(a);
(c) the Trust Units held by Unitholders in respect of which Dissent Rights have been validly exercised (the “Dissenting Unitholders”) shall be deemed to have been transferred without any further act or formality to the Purchaser (free and clear of any Encumbrances) and:
(i) such Dissenting Unitholders shall cease to be the holders of such Trust Units and to have any rights as holders of such Trust Units other than the right to be paid fair value for such Trust Units as set out in Section 3.1;
(ii) such Dissenting Unitholders’ names shall be removed as the holders of such Trust Units from the registers of Harvest maintained by or on behalf of Harvest; and
(iii) the Purchaser shall be deemed to be the transferee of such Trust Units (free and clear of any Encumbrances) and shall be entered in the registers of Trust Units maintained by or on behalf of Harvest;
(d) each Trust Unit outstanding immediately prior to the Effective Time (other than Trust Units subject to step (C)) shall be transferred without any further act or formality to the Purchaser (free and be deemed to be irrevocably transferred to Parent in exchange forclear of any Encumbrances) for $10.00 per Trust Unit, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand:
(i) each holder the holders of such Company Shares Trust Units immediately before the Effective Time shall cease to be the holder holders thereof and to have any rights as holders of such Company Shares Trust Units other than the right to be paid $10.00 per Trust Unit in accordance with this Plan of Arrangement and other than the right to receive any declared but unpaid dividends on such holder’s name shall be removed from the applicable securities register of Company SharesTrust Units;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will holders’ names shall be and removed as the holders from the registers of Trust Units maintained by or on behalf of Harvest; and
(iii) the Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Shares Trust Units (free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iiiany Encumbrances) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register registers of holders Trust Units maintained by or on behalf of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectHarvest.
Appears in 1 contract
Arrangement. Commencing on Pursuant to the Effective TimeArrangement, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality formality, in each case, unless stated otherwise, effective at five minute intervals starting at the Effective Time:
(1) each Vested Performance Option shall, without any further action by or on behalf of the holder thereof, be deemed to be assigned and surrendered by such holder to the Corporation in exchange for, in respect of each Vested Performance Option for which the Consideration exceeds the exercise price, an amount in cash from the Corporation equal to the Consideration less the applicable exercise price (or, in respect of a Vested Performance Option that has an exercise price denominated in Canadian dollars, the US Equivalent thereof) in respect of such Vested Performance Option, less any applicable withholdings pursuant to Section 4.3, and such Vested Performance Option shall immediately be cancelled. For greater certainty, where the exercise price (or, in respect of a Vested Performance Option that has an exercise price denominated in Canadian dollars, the US Equivalent thereof) of any Vested Performance Option is greater than or by equal to the CompanyConsideration, Parent neither the Corporation nor the Purchaser shall be obligated to pay the holder of such Vested Performance Option the Consideration or any other Personamount in respect of such Vested Performance Option, and the Vested Performance Option shall be immediately cancelled;
(2) each Unvested Performance Option shall, without any further action by or on behalf of the holder thereof, immediately be cancelled;
(3) each unvested RSU and PSU shall, notwithstanding the terms of any Incentive Plan or any award or similar agreement pursuant to which any Incentive Securities were granted or awarded, as applicable, be deemed to have been vested;
(4) an aggregate number of RSUs and PSUs equal to the number of Shares held in the Share Purchase Trust (the "Settled Share Units"), if any, shall be settled in exchange for one Share (all such Shares delivered in settlement, the "Trust Shares") for each such Settled Share Unit and, without any further action by or on behalf of the holders of each such Settled Share Unit, the Corporation, the trustee under the Share Purchase Trust or the Share Purchase Trust, each such Trust Share shall thereupon be held by the Share Purchase Trust for and on behalf of the holders of each such Settled Share Unit (subject to any withholding in accordance with Section 4.3) and each such Settled Share Unit shall be immediately cancelled; provided that the aggregate number of RSUs and PSUs to be so settled shall be allocated between RSUs and PSUs, and among holders, pro rata based on the number of RSUs and/or PSUs held by each holder relative to the aggregate number of RSUs and PSUs outstanding immediately prior to such settlement;
(5) each Trust Share shall be transferred without any further action by or on behalf of the trustee under the Share Purchase Trust, the Share Purchase Trust or any holder of Settled Share Units, to the Purchaser in exchange for the Consideration, and in connection therewith: (A) a portion of the amount held by the Depositary as agent for and on behalf of the Purchaser, equal to the aggregate Consideration payable in respect of Trust Shares, shall thereupon be held by the Depositary as agent for and on behalf of holders of Settled Share Units (which amount, following the completion of the Plan of Arrangement, shall be transferred to the Corporation to be held on behalf of the applicable holders and paid to such holders in accordance with Section 4.1(3) (subject to any withholding in accordance with Section 4.3)), (B) the holder of each such Trust Share shall cease to be the holder thereof and to have any rights as a Shareholder other than the right to be paid the amount determined in accordance with this Section 2.3(5), and (C) the Purchaser shall be recorded in the register of holders of Shares maintained by or on behalf of the Corporation as the holder of the Trust Shares so transferred and shall be deemed to be the legal and beneficial owner thereof;
(6) each RSU and PSU that remains outstanding (for greater certainty, not including the Settled Share Units settled in accordance with Section 2.3(4)) shall, without any further action by or on behalf of the holder thereof, be deemed to be transferred by such holder to the Corporation in exchange for an amount in cash from the Corporation equal to the Consideration, in each case, with such amounts to be paid to the applicable holders in accordance with Section 4.1(3) less any applicable withholdings pursuant to Section 4.3, and each such RSU and PSU shall immediately be cancelled; for greater certainty following this step: (i) each former holder of Incentive Securities shall have ceased to be a holder of such Incentive Securities, (ii) the Incentive Plans and any and all option, award or similar agreements relating to the Incentive Securities shall be terminated and shall be of no further force and effect, and (iii) each such holder shall cease to have any rights as a holder in respect of such Incentive Securities or under the Incentive Plans and have only the right to receive the consideration, if any, to which it is entitled pursuant to this Section 2.3, at the time and in the manner specified in this Plan;
(7) each outstanding Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further action by or on behalf of the holder thereof to the Purchaser, and:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares Dissenting Holder shall cease to be the holder of such Company Share and to have any rights as a Shareholder, other than the right to be paid the fair value of its Shares and by the Purchaser in accordance with Section 3.1;
(b) such holder’s Dissenting Holder's name shall be removed from the applicable securities register of Company Shares;holders of Shares maintained by or on behalf of the Corporation; and
(iic) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock Purchaser shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered recorded in the register of holders of Parent Common Stock Shares maintained by or on behalf of the Corporation as the registered holder of the Shares so transferred, and shall be deemed to be the legal and beneficial owner thereof;
(v8) concurrently with step (7) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirementsabove, each Company Option that is then outstanding and unexercised Share (a “Company Unexercised Option”for greater certainty, other than the Trust Shares or Shares held by Dissenting Holders who have validly exercised their respective Dissent Rights) shall be cancelled transferred without any further action by or on behalf of the holder thereof, to the Purchaser in exchange for the Consideration, less any applicable withholdings pursuant to Section 4.3, and:
(a) the holder of each such Share shall cease to be the holder thereof and to have any rights as a Shareholder other than the right to be paid the Consideration in accordance with the terms this Plan of Arrangement;
(b) a portion of the Company Option Plan andamount held by the Depositary as agent for and on behalf of the Purchaser, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior equal to the Effective Time (including any repurchase rights or vesting provisionsaggregate Consideration payable in respect of such outstanding Shares, if applicable)shall thereupon be held by the Depositary as agent for and on behalf of the former holders of such Shares, except that (i) each Company Unexercised Option will to be exercisable (or will become exercisable paid to such holders following the completion of the Plan of Arrangement in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawSection 4.1;
(vic) The Company Option Plan such holder's name shall be cancelledremoved from the register of holders of Shares maintained by or on behalf of the Corporation; and
(viid) without any action the Purchaser shall be recorded in the register of holders of Shares maintained by or on behalf of the part of Parent, the Company or Corporation as the holder of that certain warrant to purchase Company Common the Shares dated as of October 5so transferred, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectdeemed to be the legal and beneficial owner thereof.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence at two-minute intervals without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharenotwithstanding any vesting or exercise provisions to which a Company Option or Company PSU might otherwise be subject (whether by contract, Class B Convertible Preferred Sharethe conditions of a grant, Class C Convertible Preferred Share applicable Law or the terms of the Stock Option Plan or PSU Plan) each Company Option and Company Common Share PSU issued and outstanding immediately prior to at the Effective Time shall be and will, without any further action by or on behalf of any holder of such Company Option or Company PSU, be deemed to be irrevocably transferred fully vested and all of the outstanding Company Option or Company PSU, without any further action on behalf of the holder thereof and without any payment except as provided in this Plan of Arrangement and notwithstanding the terms of the Stock Option Plan or PSU Plan, as the case may be, shall be disposed of and surrendered by the holders thereof to Parent the Company without any act or formality on its or their part in exchange forfor the Cash-Out Consideration (other than Company Options where the Cash- Out Consideration is nil, such Company Options to be disposed of and surrendered by the holders thereof to the Company without any act or formality on its or their part in each caseexchange for no consideration), that number of shares of Parent Common Stock as determined in accordance with and the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall Option or Company PSU will cease to be the holder of such Company Option or Company PSU, will cease to have any rights as a holder in respect of such Company Option or Company PSU under the Stock Option Plan or PSU Plan, such holder’s name will be removed from the Company’s register of Company Options or Company PSUs, and all agreements, grants and similar instruments relating thereto will be cancelled;
(b) each Dissent Share held by a Dissenting Shareholder entitled to be paid fair value for its Dissent Shares will be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, charges, encumbrances and any other rights of others, to the Purchaser in consideration for a debt claim against the Purchaser in an amount determined in accordance with Article 4 and thereupon each Dissenting Shareholder will have only the rights set out in Article 4 and each Dissenting Shareholder will cease to be the holder of such Common Shares;
(c) each outstanding Common Share (other than those Common Shares acquired by the Purchaser from Dissenting Shareholders under Section 3.1(b)), will be transferred to, and acquired by the Purchaser, free and clear of all liens, charges, encumbrances and any other rights of others, in exchange for a cash payment equal to the Consideration and, in respect of each Common Share:
(i) each former holder of Common Shares will cease to be the holder of such Common Shares so exchanged concurrently with the exchanges referred to in this Section 3.1(c) and such holder’s name shall will be removed from the applicable securities register of Company Shares;holders of Common Shares at such time; and
(ii) legal and beneficial title to such Company Shares the Purchaser will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner holder of such Company Common Shares (free and clear of all liens, charges, encumbrances and any other rights of others) on the Effective Date and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the Company’s register of holders of Parent Common Stock Shares as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (xd) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable PSU Plan and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Stock Option Plan shall be cancelled; and
terminated (viiand all rights issued thereunder shall expire) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect; and
(e) the Company issues to the Purchaser Common Shares of the Company in consideration for the cash consideration deposited by the Purchaser with the Depositary, on behalf and at the direction of the Company, pursuant to Section 5.1(b).
Appears in 1 contract
Sources: Arrangement Agreement (Merus Labs International Inc.)
Arrangement. Commencing on Pursuant to the Effective TimeArrangement, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of or by formality, in each case, unless stated otherwise, starting at the CompanyEffective Time and effective as at two (2) minutes intervals (in each case, Parent or any other Person:unless otherwise specified):
(a1) Each Class A Convertible Preferred Sharenotwithstanding the terms of the Shareholder Rights Plan, Class B Convertible Preferred Sharethe Shareholder Rights Plan shall be terminated, Class C Convertible Preferred Share and Company Common Share all rights issued pursuant to the Shareholder Rights Plan shall be cancelled without any payment in respect thereof;
(2) notwithstanding the terms of the Investor Rights Agreement, the Investor Rights Agreement shall be terminated;
(3) each Option outstanding immediately prior to the Effective Time with an Exercise Price per Share that is less than the Cash Consideration that has not yet vested in accordance with its terms shall be accelerated so that such Option becomes exercisable, notwithstanding the terms of the Share Option Plan or any award or similar agreement pursuant to which such Option was granted or awarded, immediately following which each such Option that is outstanding and has not been duly exercised, without any further action by or on behalf of the holder thereof, shall be deemed to be irrevocably transferred assigned and surrendered by such holder to Parent the Company, free and clear of all Liens, in exchange forfor an amount in cash from the Company equal to the Cash Consideration less the applicable Exercise Price in respect of such Option, less any applicable withholdings pursuant to Section 4.3, and one (1) CVR issued by the Purchaser on behalf of the Company, less any applicable withholdings pursuant to Section 4.3, and such Option shall immediately be cancelled and all of the Company’s obligations with respect to such Option shall be deemed to be fully satisfied;
(4) each Option outstanding immediately prior to the Effective Time with an Exercise Price per Share that is greater than or equal to the Cash Consideration and less than the Cash Consideration plus the Maximum Milestone Payments Amount (an “Underwater Option”) that has not yet vested in accordance with its terms shall be accelerated so that such Option becomes exercisable, notwithstanding the terms of the Share Option Plan or any award or similar agreement pursuant to which such Option was granted or awarded, immediately following which each such Option that is outstanding and has not been duly exercised, without any further action by or on behalf of the holder thereof, shall be deemed to be assigned and surrendered by such holder to the Company, free and clear of all Liens, in exchange for one (1) CVR issued by the Purchaser on behalf of the Company, less any applicable withholdings pursuant to Section 4.3, and such Option shall immediately be cancelled and all of the Company’s obligations with respect to such Option shall be deemed to be fully satisfied; provided that each CVR issued to a holder in respect of an Underwater Option shall only entitle such holder to a maximum amount in cash equal to the amount by which the Cash Consideration plus the Maximum Milestone Payments Amount exceeds the Exercise Price per Share of such Underwater Option, if payable and as otherwise determined in accordance with the Contingent Value Rights Agreement. For greater certainty, where the Exercise Price of any Option is greater than or equal to the Cash Consideration plus the Maximum Milestone Payments Amount, neither the Company nor the Purchaser shall be obligated to pay the holder of such Option the Consideration or any other amount in respect of such Option, and the Option shall be immediately cancelled;
(5) each SAR outstanding immediately prior to the Effective Time with an Exercise Price per Share that is less than the Cash Consideration that has not yet vested in accordance with its terms shall be accelerated so that such SAR becomes exercisable, notwithstanding the terms of the SAR Plan or any award or similar agreement pursuant to which any SARs were granted or awarded, immediately following which each such SAR that is outstanding and has not been duly exercised, without any further action by or on behalf of the holder thereof, shall be deemed to be assigned and surrendered by such holder to the Company, free and clear of all Liens, in exchange for an amount in cash from the Company equal to the Cash Consideration less the applicable Exercise Price in respect of such SAR, less any applicable withholdings pursuant to Section 4.3, and one (1) CVR issued by the Purchaser on behalf of the Company, less any applicable withholdings pursuant to Section 4.3, and such SAR shall immediately be cancelled and all of the Company’s obligations with respect to such SAR shall be deemed to be fully satisfied;
(6) each SAR outstanding immediately prior to the Effective Time with an Exercise Price per Share that is greater than or equal to the Cash Consideration and less than the Cash Consideration plus the Maximum Milestone Payments Amount (an “Underwater SAR”) that has not yet vested in accordance with its terms shall be accelerated so that such SAR becomes exercisable, notwithstanding the terms of the SAR Plan or any award or similar agreement pursuant to which such SAR was granted or awarded, immediately following which each such SAR that is outstanding and has not been duly exercised, without any further action by or on behalf of the holder thereof, shall be deemed to be assigned and surrendered by such holder to the Company, free and clear of all Liens, in exchange for one (1) CVR issued by the Purchaser on behalf of the Company, less any applicable withholdings pursuant to Section 4.3, and such SAR shall immediately be cancelled and all of the Company’s obligations with respect to such SAR shall be deemed to be fully satisfied; provided that each CVR issued to a holder in respect of an Underwater SAR shall only entitle such holder to a maximum amount in cash equal to the amount by which the Cash Consideration plus the Maximum Milestone Payments Amount per CVR exceeds the Exercise Price per Share of such Underwater SAR, if payable and as otherwise determined in accordance with the Contingent Value Rights Agreement. For greater certainty, where the Exercise Price of any SAR is greater than or equal to the Cash Consideration plus the Maximum Milestone Payments Amount, neither the Company nor the Purchaser shall be obligated to pay the holder of such SAR the Consideration or any other amount in respect of such SAR, and the SAR shall be immediately cancelled;
(7) each Warrant outstanding immediately prior to the moment that is immediately prior to the Effective Time that has not yet vested in accordance with its terms shall be accelerated so that such Warrant becomes exercisable, notwithstanding the terms of the Warrants or any award or similar agreement pursuant to which any Warrants were granted or awarded, immediately following which each Warrant that is outstanding and has not been duly exercised, without any further action by or on behalf of the holder thereof, shall be deemed to be assigned and surrendered by such holder to the Company, free and clear of all Liens, in exchange for an amount in cash from the Company equal to the amount (if any) by which the Cash Consideration exceeds the Exercise Price of such Warrant, multiplied by the fraction of Share that such Warrant entitles the holder to purchase, being one fourth (1/4) of a Share, less any applicable withholdings pursuant to Section 4.3, and one (1) CVR, issued by the Purchaser on behalf of the Company, for every four (4) Warrants, with any fractions rounded down to the nearest whole with no further compensation for any loss of such fractional part of a CVR, less any applicable withholdings pursuant to Section 4.3, and each such Warrant shall immediately be cancelled and all of the Company’s obligations with respect to each such Warrant shall be deemed to be fully satisfied. For greater certainty, where the foregoing amount is equal to zero or negative for any such Warrant, neither the Company nor the Purchaser shall be obligated to pay the holder of such Warrant the Cash Consideration or any other amount in respect of such Warrant, and the Warrant shall be immediately cancelled;
(8) each director of the Company shall resign from, and shall be deemed to have immediately resigned from, the Board and the board of directors of any Subsidiary;
(9) each DSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall, notwithstanding the terms of the DSU Plan or any award or similar agreement pursuant to which any DSUs were granted or awarded, as applicable, be deemed to have vested;
(10) each whole DSU that remains outstanding shall, without any further action by or on behalf of the holder thereof, be deemed to be transferred by such holder to the Company, free and clear of all Liens, in exchange for an amount in cash from the Company equal to (i) the Cash Consideration, in each case, that number of shares of Parent Common Stock as determined with such amounts to be paid to the applicable holders in accordance with Section 4.1(3) less any applicable withholdings pursuant to Section 4.3 and (ii) one (1) CVR issued by the formula set out Purchaser on Exhibit A attached hereto.behalf of the Company, less any applicable withholdings pursuant to Section 4.3, and each such DSU shall immediately be cancelled and all of the Company’s obligations with respect to each such DSU shall be deemed to be fully satisfied;
(b11) Upon each fractional DSU that remains outstanding (if any) shall, without any further action by or on behalf of the transfer holder thereof, be deemed to be transferred by such holder to the Company in exchange for an amount in cash from the Company equal to the Cash Consideration multiplied by the applicable fraction of a DSU held by the applicable holder, in each case, with such amounts to be paid to the applicable holders in accordance with Section 4.1(3) less any applicable withholdings pursuant to Section 4.3 and each such fractional DSU shall immediately be cancelled and all Company Shares of the Company’s obligations with respect to Parent:each such fractional DSU shall be deemed to be fully satisfied;
(i) each former holder of Incentive Securities shall cease to be a holder of such Company Incentive Securities, (ii) such holder’s name shall be removed from each applicable register, (iii) the Incentive Plans and any and all option, award or similar agreements relating to the Incentive Securities shall be terminated and shall be of no further force and effect, and (iv) each such holder shall cease to have any rights as a holder in respect of such Incentive Securities or under the Incentive Plans and have only the right to receive the consideration, if any, to which it is entitled pursuant to this Section 2.3, at the time and in the manner specified in this Plan of Arrangement;
(13) each Exchangeable Subscription Receipt that is not exchanged into Shares immediately prior to the Effective Time and that remains outstanding shall, without any further action by or on behalf of the holder thereof, be deemed to be transferred by such holder to the Company, free and clear of all Liens, in exchange for (i) the Exchangeable Receipt Cash Consideration with such amount to be paid to the holder in accordance with Section 4.1(2) less any applicable withholdings pursuant to Section 4.3 and (ii) one (1) CVR issued by the Purchaser on behalf of the Company, less any applicable withholdings pursuant to Section 4.3, and each such Exchangeable Subscription Receipt shall immediately be cancelled and all of the Company’s obligations with respect to each such Exchangeable Subscription Receipt shall be deemed to be fully satisfied;
(14) each outstanding Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to be transferred without any further action by or on behalf of the holder thereof to the Purchaser, free and clear of all Liens, and:
(a) such Dissenting Holder shall cease to be the holder of such Share and to have any rights as a Shareholder, other than the right to be paid the fair value of such Share by the Purchaser in accordance with Section 3.1;
(b) such Dissenting Holder’s name shall be removed from the register of holders of Shares maintained by or on behalf of the Company; and
(c) the Purchaser shall be recorded in the register of holders of Shares maintained by or on behalf of the Company as the holder of the Shares so transferred, and shall be deemed to be the legal and beneficial owner thereof;
(15) concurrently with the step set forth in Section 2.3(14), each outstanding Share (for greater certainty, other than the Shares held by Dissenting Holders who have validly exercised their respective Dissent Rights) shall be transferred without any further action by or on behalf of the holder thereof, to the Purchaser, free and clear of all Liens, in exchange for the Cash Consideration, less any applicable withholdings pursuant to Section 4.3, and one (1) CVR, less any applicable withholdings pursuant to Section 4.3, and:
(a) the holder of such Share shall cease to be the holder thereof and to have any rights as a Shareholder other than the right to be receive the Consideration in accordance with this Plan of Arrangement;
(b) such holder’s name shall be removed from the applicable securities register of Company Shares;holders of Shares maintained by or on behalf of the Company; and
(iic) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock Purchaser shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered recorded in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action Shares maintained by or on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms behalf of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common the Shares dated as of October 5so transferred, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectdeemed to be the legal and beneficial owner thereof.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur consecutively in the following order order, each occurring five minutes following completion of the previous event without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharenotwithstanding the terms of the Shareholder Rights Plan, Class B Convertible Preferred Share, Class C Convertible Preferred Share the Shareholder Rights Plan shall be terminated and Company Common Share outstanding immediately prior all rights issued pursuant to the Effective Time Shareholder Rights Plan shall be and be deemed to be irrevocably transferred to Parent cancelled without any payment in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.respect thereof;
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name Dissent Share shall be removed from transferred by such Dissenting Shareholder to Purchaser (free and clear of any Liens) in accordance with, and for the applicable securities register of Company Sharesconsideration contemplated in, Article 4;
(iic) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately extent not exercised prior to the Effective Time, except shall be deemed terminated without any payment in respect thereof;
(d) the Effective Date shall be deemed to be the extent vesting date for all of the then issued and outstanding Company RSUs, and the Company shall allot and issue to each Company RSU Holder such number of Company Unexercised Option (either by its terms or by Shares as are due to such holder under the terms of another Contractsuch RSUs and thereafter (i) provides for acceleration the Company Incentive Plans will terminate and none of vesting thereof. Each the former holders of Company Unexercised Option shallRSUs or Company Options shall have any rights, liabilities or obligations in respect of the Company Incentive Plans and (ii) the Company RSU Holders will be treated in all respects as Company Shareholders with respect to the Company Shares issued pursuant to this Section 3.1(d);
(e) each Company Share (other than any Dissent Share) shall be transferred to Purchaser (free and clear of any Liens) in exchange for:
(i) the Share Consideration; or
(ii) the Cash Consideration, in each case in accordance with its termsthe election or deemed election of such Shareholder pursuant to Section 3.2, be in each case, subject to further adjustment proration in accordance with Section 3.3;
(f) with respect to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, Share transferred in accordance with Section 3.1(b) or Section 3.1(e):
(i) the number of shares for which such Company Unexercised Option is exercisable and registered holder thereof shall cease to be the terms and conditions of exercise registered holder of such Company Unexercised Option Share and shall cease to have any rights in respect of such Company Share and the name of such registered holder shall be determined in such manner so removed from the register of Company Shareholders as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawtime of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable;
(viii) The Company Option Plan the registered holder thereof shall be cancelleddeemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Company Share; and
(viiiii) without any action on the part of Parent, the Company or Purchaser will be the holder of that certain warrant to purchase all of the outstanding Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing time of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable and the central securities register of Company shall be revised accordingly and Purchaser shall be entitled to all of no further force or effectthe rights and privileges attached to the Company Shares.
(g) the transfers, exchanges, issuances and terminations provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality on the part of or by the Company, Parent or any other Personperson:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior the Longhi LTIP Shares held in the Executive Long Term Incentive Plan Trust shall revert to the Effective Time Company for no consideration and be cancelled and Gerdau shall deposit to the Executive Long Term Incentive Plan Trust that number of ADSs equal to the number of Longhi LTIP Shares held in the Executive Long Term Incentive Plan Trust multiplied by the Exchange Ratio in substitution therefore and shall, in the future, deposit additional ADSs to the Executive Long Term Incentive Plan Trust based on the number of Common Shares that are required to be and delivered to the Executive Long Term Incentive Plan Trust multiplied by the Exchange Ratio;
(b) the Common Shares held by each Dissenting Shareholder shall be deemed to be irrevocably transferred (free and clear of any Liens) to Parent in exchange forthe Acquiror, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand:
(i) each holder of the Acquiror shall be obligated to pay such Company Shares Dissenting Shareholder the amount determined in accordance with Section 4.1 for such Common Shares;
(ii) such Dissenting Shareholder shall cease to be the holder of such Company Common Shares and shall cease to have any rights as a holder of such Common Shares, other than the right to be paid the amount determined in accordance with Section 4.1 for such Common Shares;
(iii) such Dissenting Shareholder’s name shall be removed as the holder of such Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iv) the Acquiror shall be deemed to be the holder of such Common Shares (free and clear of any Liens) and shall be entered as the holder of such Common Shares in the register of Common Shares maintained by or on behalf of the Company;
(c) each Common Share (other than Common Shares held by (i) Dissenting Shareholders and (ii) Gerdau and its subsidiaries) shall be transferred (free and clear of all Liens) by the holder thereof to the Acquiror and:
(i) the Acquiror shall, subject to Article 5, be obligated to pay such holder an amount of cash equal to the Acquisition Price in exchange for each Common Share transferred;
(ii) such holder shall cease to be the holder of such Common Shares and shall cease to have any rights as a holder of such Common Shares, other than the right, subject to Article 5, to receive the amount of cash that such holder is entitled to receive in exchange for such Common Shares in accordance with Section 3.1(c)(i), in each case less any amounts required to be withheld, in accordance with Section 5.4;
(iii) such holder’s name shall be removed as the holder of such Common Shares from the applicable securities register of Company Shares;Common Shares maintained by or on behalf of the Company; and
(iiiv) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and the Acquiror shall be deemed to be the transferee and legal and beneficial owner holder of such Company Common Shares (free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iiiany Liens) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered as the holder of such Common Shares in the register of holders Common Shares maintained by or on behalf of Parent Common Stock as the registered holder thereofCompany;
(vd) without any action new equity based compensation plans shall be adopted by Gerdau with terms in all respects the same as the Company Equity Plans;
(e) the LTIP shall be amended with respect to SARs and Phantom Shares held by Canadian Awardholders and the SAR Plan and the SIS Plan shall be amended with respect to SARs held by Canadian Awardholders to provide that such Phantom Shares and SARs will be based on ADSs;
(f) each outstanding Phantom Share granted under the LTIP and held by a Canadian Awardholder shall be amended to provide that such Phantom Shares will be in respect of ADSs with the number of Phantom Shares adjusted using the Exchange Ratio;
(g) each outstanding SAR granted under the SAR Plan, the SIS Plan and the LTIP and held by a Canadian Awardholder shall be amended to provide that such SARs will be in respect of ADSs with both the number and base price of SARs adjusted using the Exchange Ratio;
(h) each outstanding PSU and RSU, and each Phantom Share held by a U.S. Awardholder shall be cancelled and Gerdau shall grant, in exchange for each such award, a new restricted share unit, performance share unit, or phantom share, as applicable, on the part same terms and conditions, mutatis mutandis, as the cancelled PSUs, RSUs, and Phantom Shares but in respect of ParentADSs, with the number of such PSUs, RSUs and Phantom Shares adjusted using the Exchange Ratio;
(i) each outstanding Option and SAR (other than the SARs held by Canadian Awardholders under the SAR Plan, the Company or SIS Plan and the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”LTIP) shall be cancelled in accordance with the terms of the Company Option Plan andand Gerdau shall grant, in exchange for each such cancellationaward, such holder shall receive an a new option to purchase shares of Parent Common Stock with substantially or share appreciation right, as applicable, having the same vesting date, expiry date and other terms and conditions conditions, mutatis mutandis, as the cancelled Options and SARs but in respect of ADSs, with both the number of Options and SARs and the exercise price or base price of the Options and SARs adjusted using the Exchange Ratio;
(including j) the terms Co-Steel Share Loan Plan, the Company Equity Plans other than the LTIP, the SAR Plan and conditions of any applicable stock option agreement or other document evidencing such the SIS Plan shall be cancelled;
(k) the Directors Plan shall be cancelled and the Company Option, if any) as were in effect immediately prior shall redeem each outstanding DSU for consideration equal to the Effective Time Acquisition Price;
(including any repurchase rights l) the Longhi Employment Agreement shall be amended such that (a) Gerdau will assume the obligation under the Longhi Employment Agreement to provide ADSs, and (b) all references to Common Shares contained therein are amended to refer to ADSs with the number of Common Shares adjusted using the Exchange Ratio;
(m) each participant in the Co-Steel Share Loan Plan shall have his or vesting provisions, if applicable), except that her employee loan under the Co-Steel Share Loan Plan become immediately due and payable and shall be entitled to:
(i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of if such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for participant’s Co-Steel Indebtedness Amount is less than such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time participant’s Co-Steel Cash Amount as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to at the Effective Time, except receive a cash amount equal to (A) the extent Co-Steel Cash Amount for such Company Unexercised Option participant less (either by its terms or by B) the terms of another ContractCo-Steel Indebtedness Amount for such participant; or
(ii) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to if such participant’s Co-Steel Indebtedness Amount is greater than the participant’s Co-Steel Cash Amount as at the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) a reduction of the Canadian Tax Act and Co-Steel Indebtedness Amount for such participant in the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledamount of the Co-Steel Cash Amount for such participant; and
(viin) without any action the exchanges, payments and cancellations contemplated by this Section 3.1 shall be deemed to occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force procedures related thereto are not completed until after the Effective Time or effectafter the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement (Gerdau S.A.)
Arrangement. Commencing on 3.1 On the Effective TimeDate, subject to the provisions of Article 5 hereof, the following shall will occur and shall will be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Person:formality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common each issued Mylk Share outstanding immediately prior to the Effective Time shall be and held by a Mylk Shareholder in respect of which Dissent Rights have been validly exercised will be deemed to be irrevocably have been transferred without any further act or formality, to Parent EATS, free and clear of any liens, claims and encumbrances in exchange for, consideration for a debt claim against EATS in each case, that number of shares of Parent Common Stock as determined an amount and payable in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to ParentArticle 5, and:
(i) each holder of such Company Shares shall Mylk Shareholder will cease to be the registered holder of such Company Dissenting Shares and will cease to have any rights as registered holders of such holder’s name shall Mylk Shares other than the right to be removed from the applicable securities register of Company Sharespaid fair value for such Dissenting Shares as set out in Section 5.2(a);
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent Mylk Shareholder’s name will be and removed as the registered holder of such Dissenting Shares from the registers of Mylk Shares maintained by or on behalf of Mylk; and
(iii) EATS will be deemed to be the transferee and legal and beneficial owner of such Company Shares Dissenting Shares, free and clear of any liens, claims and encumbrances; and
(b) immediately thereafter, each issued and outstanding Mylk Share (other than any Mylk Share in respect of which a registered Mylk Shareholder has validly exercised his, her or its Dissent Right) will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangementtransferred to, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent)acquired by EATS, without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action act or formality on the part of Parentthe holder of such Mylk Share or EATS, the Company or the holders free and clear of Company Optionsall liens, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding claims and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan andencumbrances, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock EATS Shares equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, provided that the aggregate number of EATS Shares payable to any Mylk Shareholder, if calculated to include a fraction of a EATS Share, will be rounded down to the nearest whole number of shares of Parent Common StockEATS Share, with no consideration being paid for the fractional share, and (ii) the per share exercise price for name of each such Mylk Shareholder will be removed from the shares register of Parent Common Stock issuable upon exercise holders of Mylk Shares and added to the register of holders of EATS Shares, and EATS will be recorded as the registered holder of such Company Unexercised Option Mylk Shares so exchanged and will be equal deemed to be the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to legal and beneficial owner thereof.
3.2 From the Effective Time, except where Mylk is required to issue Mylk Shares to any person or entity pursuant to any Mylk Warrant, any convertible securities or any other agreement or arrangement (and such issuance of Mylk Shares is not otherwise addressed in this Plan of Arrangement) such obligation will be satisfied by the delivery to the extent person or entity entitled to receive such Company Unexercised Option (either by its terms Mylk Shares the number of EATS Shares equal to the Exchange Ratio that the person or entity would have been entitled to receive if the Mylk Shares had been issued immediately before the Effective Time, and the person or entity entitled to receive the Mylk Shares will be bound by the terms of another Contract) provides for acceleration this Plan of vesting thereof. Each Company Unexercised Option shall, Arrangement and will receive and accept EATS Shares in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision lieu of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectMylk Shares.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share the Ample Shareholders Agreement and Company Common Share outstanding immediately prior to the Effective Time Ample Voting Agreement shall be and each be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares terminated and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect;
(b) each Ample Shareholder (other than Dissenting Shareholders) shall be deemed to have irrevocably appointed the Shareholder Representative to act on its behalf in accordance with Section 2.1, and to have authorized the Shareholder Representative to enter into the Escrow Agreement and the Rights Indenture on behalf of such Ample Shareholder and, upon the execution and delivery of the Escrow Agreement and the Rights Indenture, the Escrow Agreement and the Rights Indenture shall each be binding upon each Ample Shareholder (other than Dissenting Shareholders) as if it had been entered into by each such Ample Shareholder directly;
(c) each Dissent Share shall, as of the Effective Time, be deemed to be transferred and assigned by such Dissenting Shareholder, without any further act of formality on its part, to Purchaser (free and clear of all Liens) in accordance with, and for the consideration contemplated in, ARTICLE 5 and:
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Dissent Share and the name of such registered holder shall be, and shall be deemed to be, removed from the central securities register maintained by or on behalf of Ample in respect of each such Dissent Share, and at such time each Dissenting Shareholder will have the rights set out in Section 5.1;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Dissent Share; and
(iii) Purchaser shall be and shall be deemed to be the holder of all of the outstanding Dissent Shares and the central securities register of Purchaser shall be, and shall be deemed to be, revised accordingly;
(d) each Ample Share (other than any Ample Share held by Akerna, Purchaser or any of their respective Affiliates and any Dissent Share) shall be transferred and assigned, without any further act or formality on its part, to Purchaser (free and clear of all Liens) in exchange for the Up-front Consideration, which shall, subject Section 4.4, be delivered pursuant to Section 6.1, and:
(i) the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Ample Share and the name of such registered holder shall be, and shall be deemed to be, removed from the central securities register maintained by or on behalf of Ample;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Ample Share; and
(iii) Purchaser shall be and shall be deemed to be the holder of all of the outstanding Ample Shares and the central securities register maintained by or on behalf of Ample shall be, and shall be deemed to be, revised accordingly; and
(e) concurrently with the preceding step: (i) Akerna, Callco, Purchaser and the Shareholder Representative shall execute the Exchangeable Share Support Agreement; and (ii) Akerna, Purchaser, Callco, the Trustee and the Shareholder Representative shall execute the Voting and Exchange Trust Agreement; it being expressly provided that the events provided for in this Section 4.1 will be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement (Akerna Corp.)
Arrangement. 3.1 The Arrangement Commencing on at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur at the times set out below, in the following order each case without any further authorization, act or formality of or by the Company, Parent any Holder, Acquisitionco or any other Person:person.
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share At the Effective Time:
(i) all of the Options granted and Company Common Share outstanding immediately prior to the Effective Time shall will be and be deemed transferred by the holders thereof to be irrevocably transferred to Parent the Company in exchange forfor a cash payment equal to the Option Consideration, payable to each Optionholder in respect of each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.Option transferred by such Optionholder;
(bii) Upon with respect to each Option, the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall thereof will cease to be the holder of such Company Shares Option, will cease to have any rights as a holder in respect of such Option or under the Stock Option Plan, and such holder’s name shall will be removed from the applicable securities register registers of Company Shares;
(ii) legal and beneficial title Options with respect to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofOptions;
(iii) no fractional shares of Parent Common the Stock shall Option Plan will be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Datecancelled;
(ivb) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, Immediately after the name of such holder shall be entered steps in the register of holders of Parent Common Stock as the registered holder thereof;Section 3.1(a) occur:
(vi) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then all Common Shares outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including Dissenting Shares and any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal Shares issued pursuant to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised any Option immediately duly exercised prior to the Effective Time multiplied in accordance with the provisions of the Stock Option Plan and the option agreement evidencing any such Option), will be and be deemed to be transferred by the Common Shareholders to Acquisitionco (yfree and clear of any Liens) in exchange for a cash payment equal to (A) the Option Exchange RatioPurchase Price for each Common Share other than Dissenting Shares, rounded down (B) the fair value as set out in Section 4.1(a) for each Dissenting Share to the nearest whole number of shares of Parent Common Stockwhich Section 4.1(a) applies, and (iiC) the per share exercise price in respect of any Common Shareholder who exercises Dissent Rights and who is ultimately not entitled to be paid fair value for the shares Common Shares in respect of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Optionwhich they have exercised Dissent Rights, the number of shares Purchase Price for which each such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledCommon Share; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Combination Agreement (Aspreva Pharmaceuticals CORP)
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach Alexco In-the-Money Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall immediately and unconditionally vest, Class B Convertible Preferred Sharenotwithstanding the terms of the Alexco Option Plan and shall, Class C Convertible Preferred Share without any further action by or on behalf of any Alexco Optionholder, be deemed to be assigned and Company Common Share transferred by such Alexco Optionholder (free and clear of all Liens) to Alexco for cancellation in exchange for the Option Consideration. The Alexco Shares comprising the Option Consideration will be issued to such Alexco Optionholder as fully paid and non-assessable shares in the capital of Alexco;
(b) each Alexco Out-of-the-Money Option outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any Alexco Optionholder, be cancelled without any payment in respect thereof;
(c) (i) each Alexco Optionholder shall cease to be a holder of such Alexco Options, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco Options shall be terminated and shall be of no further force and effect;
(d) each Alexco DSU outstanding immediately prior to the Effective Time shall be immediately and unconditionally vest, notwithstanding the terms of the Alexco DSU Plan and shall, without any further action by or on behalf of the Alexco DSU Holder thereof, be deemed to be irrevocably assigned and transferred by such Alexco DSU Holder to Parent Alexco (free and clear of all Liens) in exchange for, in each case, that number of shares of Parent Common Stock as determined by the board of directors of Alexco in accordance with the formula set out on Exhibit A attached hereto.Alexco DSU Plan, either a cash payment or the number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco DSU. Any such Alexco Shares will be issued to such Alexco DSU Holder as fully paid and non-assessable shares in the capital of Alexco; provided that no share certificates shall be issued with respect to such shares;
(b) Upon the transfer of all Company Shares to Parent:
(ie) each holder of such Company Shares Alexco DSU Holder shall cease to be the a holder of such Company Shares and Alexco DSUs, (ii) each such holder’s name shall be removed from the each applicable securities register of Company Shares;
(ii) legal maintained by Alexco, and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded agreements relating to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Alexco DSUs shall be terminated as of the Closing and shall be of no further force and effect;
(f) each Alexco RSU outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Alexco RSU Plan and shall, without any further action by or on behalf of the Alexco RSU Holder thereof, be deemed to be assigned and transferred by such Alexco RSU Holder to Alexco (free and clear of all Liens) in exchange for the number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco RSU less that number of Alexco Shares with a fair market value equal to the amount of required withholding tax rounded up to the nearest Alexco Share. The Alexco Shares will be issued to such Alexco RSU Holder as fully paid and non-assessable shares in the capital of Alexco; provided that no share certificates shall be issued with respect to such shares;
(g) (i) each Alexco RSU Holder shall cease to be a holder of such Alexco RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco RSUs shall be terminated and shall be of no further force and effect;
(h) each Dissenting Shareholder shall transfer to 108 all of the Dissent Shares held (free and clear of all Liens), without any further act or formality on its part, and in consideration therefor, 108 shall issue to the Dissenting Shareholder a debt- claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so transferred
(i) the Dissenting Shareholder shall cease to be the holder thereof,
(ii) the name of the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Alexco in respect of the Alexco Shares,
(iii) the Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(iv) the name of 108 shall be added to the register maintained by or on behalf of Alexco in respect of the Alexco Shares as the holder thereof; and
(i) each Alexco Shareholder shall transfer to 108 (free and clear of all Liens) each whole Alexco Share held (other than any Alexco Shares held by 108 immediately before the Effective Time or acquired by 108 from a Dissenting Shareholder under Section 3.1(h)), including the Alexco Shares issued pursuant to Section 3.1(d) or Section 3.1(f) in exchange for the Consideration for each Alexco Share held, and
(i) the Alexco Shareholder shall cease to be the holder thereof,
(ii) the name of the Alexco Shareholder shall be removed from the register maintained by or on behalf of Alexco in respect of the Alexco Shares,
(iii) the Alexco Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(iv) the name of 108 shall be added to the register maintained by or on behalf of Alexco in respect of the Alexco Shares as the holder thereof; it being expressly provided that the events provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Sources: Assignment and Amendment Agreement (Alexco Resource Corp)
Arrangement. Commencing on at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharenotwithstanding any vesting or exercise provisions to which an Option might otherwise be subject (whether by contract, Class B Convertible Preferred Sharethe conditions of a grant, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to applicable Laws or the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number terms of shares of Parent Common the Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:Option Plan):
(i) each right to acquire a Company Common Share pursuant to an Option that is issued and outstanding at the Effective Time shall, without any further action by or on behalf of any holder of such Company Option, be deemed to be fully vested and transferred and disposed of by the holder thereof to CanCo 1 (free and clear of all liens, claims and encumbrances) and cancelled in exchange for, subject to Section 3.4, (A) the delivery by Amalco (as successor to CanCo 1’s obligations and liabilities) of the portion of the Option Consideration in respect of that right consisting of Therapeutics Common Shares shall pursuant to Section 3.1(l)(iii), and (B) the payment by IrishCo on behalf of CanCo 1 of the portion of the Option Consideration in respect of that right consisting of IrishCo Shares; and
(ii) with respect to each such Option, the holder thereof will cease to be the holder of such Company Shares and Option, will cease to have any rights as a holder in respect of such Option or under the Stock Option Plan, such holder’s name shall will be removed from the applicable securities register of Company SharesOptions, and all option agreements, grants and similar instruments relating thereto will be cancelled;
(iib) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register Notwithstanding any provisions of the Company as the sole shareholder thereof;Share Purchase Plan:
(iiii) no fractional shares all rights of Parent Common Stock shall be issued in connection with each CSPP Participant under the Arrangement, Company Share Purchase Plan to contributions by the Company and no certificates or scrip for any such fractional shares shall be issued. Any holder to the acquisition of Company Common Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) under the Company Share Purchase Plan shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any further action by or on behalf of the part of ParentCSPP Participant, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance exchange for a cash amount equal to 25% of the aggregate number of shares purchased on behalf of that Participant under the Company Share Purchase Plan with the terms CSPP Participant’s contributions in respect of each of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect 8 fiscal quarters ending immediately prior to the Effective Time (including but excluding any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares purchased with CSPP Participant’s contributions after November 5, 2013 that would be issuable upon exercise exceeded his or her rate of contribution before that date), multiplied by the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and Share Closing Price; and
(ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will each CSPP Participant shall be equal entitled to the quotient equal to (x) return of any contributions he or she made under the per share exercise price for such Company Unexercised Option Share Purchase Plan after the fiscal quarter ending immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to before the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawwithout interest;
(vic) The the Stock Option Plan and the Company Option Share Purchase Plan shall be cancelled; and
terminated (viiand all rights issued thereunder shall expire) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect;
(d) each outstanding Company Common Share (other than those held by a Qualifying Holdco) shall be transferred and assigned to CanCo 1 in exchange for, subject to Section 3.4, (A) the payment by IrishCo on behalf of CanCo 1 of the Arrangement Cash Consideration; (B) the delivery by IrishCo on behalf of CanCo 1 of the Arrangement Stock Consideration; and (C) the delivery by Amalco (as successor to CanCo 1’s obligations and liabilities) of the Arrangement Therapeutics Consideration pursuant to Section 3.1(l)(i), and in respect of each Company Common Share so transferred and assigned,
(i) the registered holder thereof shall cease to be the registered holder of such Company Common Share and the name of such registered holder shall be removed from the register of Company Shareholders as of the Effective Time; and
(ii) CanCo 1 shall be recorded as the registered holder of such Company Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others);
(e) all of the outstanding Qualifying Holdco Shares of each Qualifying Holdco shall be transferred and assigned to CanCo 1 in exchange for, subject to Section 3.4, (A) the payment by IrishCo on behalf of CanCo 1 of the Qualifying Holdco Cash Consideration in respect of each such Qualifying Holdco; (B) the delivery by IrishCo on behalf of CanCo 1 of the Qualifying Holdco Stock Consideration in respect of each such Qualifying Holdco, and (C) the delivery by Amalco (as successor to CanCo 1’s obligations and liabilities) of the Qualifying Holdco Therapeutics Consideration pursuant to Section 3.1(l)(ii), in respect of each such Qualifying Holdco, and in respect of each Qualifying Holdco Share so transferred and assigned,
(i) the registered holder thereof shall cease to be the registered holder of such Qualifying Holdco Share and the name of such registered holder shall be removed from the register of Qualifying Holdco Shareholders as of the Effective Time; and
(ii) CanCo 1 shall be recorded as the registered holder of such Qualifying Holdco Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others);
(f) in consideration for (A) IrishCo delivering, on behalf of CanCo 1, the Arrangement Stock Consideration and the Qualifying Holdco Stock Consideration directly to the Selling Shareholders pursuant to Section 3.1(d) and Section 3.1(e), (B) IrishCo delivering on behalf of CanCo 1 the Option Consideration consisting of IrishCo Shares directly to the Optionholders pursuant to Section 3.1(a), and (C) IrishCo paying, on behalf of CanCo 1, the Arrangement Cash Consideration and the Qualifying Holdco Cash Consideration to the Selling Shareholders pursuant to Section 3.1(d) and Section 3.1(e), [—] CanCo 1 Common Shares (the “IrishCo CanCo 1 Common Shares”) shall be issued to IrishCo, and, in respect thereof, there shall be added to the stated capital account maintained by CanCo 1 for CanCo 1 Common Shares an amount equal to the Total Company Common Share Consideration;
(g) each IrishCo CanCo 1 Common Share acquired pursuant to Section 3.1(f) shall be contributed by IrishCo to the capital of Interco and, in respect of each IrishCo CanCo 1 Common Share so contributed, IrishCo shall cease to be the registered holder thereof and IrishCo’s name shall be removed from the register of shareholders of CanCo 1, and Interco shall be recorded as the registered holder of such IrishCo CanCo 1 Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others);
(h) each outstanding CanCo 1 Common Share shall be transferred and assigned to CanCo 2 in exchange for (i) [—] CanCo 2 Common Shares and (ii) the payment by CanCo 2 of $[—] in cash (the “CanCo 2 Payment”), and (A) in respect of each CanCo 1 Common Share so transferred and assigned, Interco shall cease to be the registered holder thereof and Interco’s name shall be removed from the register of shareholders of CanCo 1, and CanCo 2 shall be recorded as the registered holder of such CanCo 1 Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others) and (B) there shall be added to the stated capital account maintained by CanCo 2 for CanCo 2 Common Shares an amount equal to the CanCo 2 Common Share Consideration, in respect of the CanCo 2 Common Shares issued to Interco pursuant to this Section 3.1(h);
(i) the Company shall transfer one IrishCo Euro Share to Euro Purchaser, in exchange for €1, and in respect of such IrishCo Euro Share so delivered, the Company shall cease to be the registered holder thereof and the Company’s name shall be removed from the register of shareholders of IrishCo, and the name of Euro Purchaser shall be recorded as the registered holder of such IrishCo Euro Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others);
(j) the Company shall file an election with the Canada Revenue Agency, to be effective prior to the amalgamation described in Section 3.1(k) below, to cease to be a public corporation for the purposes of the Tax Act;
(k) CanCo 1, CanCo 2, each Qualifying Holdco and the Company shall amalgamate to form Amalco, as more fully described in Section 3.2; and
(l) concurrently:
(i) Amalco (as successor to CanCo 1’s obligations and liabilities) shall deliver and each Former Company Common Shareholder shall acquire the Arrangement Therapeutics Consideration, and in respect of each Therapeutics Common Share so delivered, Amalco shall cease to be the registered holder thereof and Amalco’s name shall be removed from the register of shareholders of Therapeutics, and the name of such Former Company Common Shareholder shall be recorded as the registered holder of such Therapeutics Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others);
(ii) Amalco (as successor to CanCo 1’s obligations and liabilities) shall deliver and each Former Qualifying Holdco Shareholder shall acquire the Qualifying Holdco Therapeutics Consideration, and in respect of each Therapeutics Common Share so delivered, Amalco shall cease to be the registered holder thereof and Amalco’s name shall be removed from the register of shareholders of Therapeutics, and the name of such Former Qualifying Holdco Shareholder shall be recorded as the registered holder of such Therapeutics Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others);
(iii) Amalco (as successor to CanCo 1’s obligations and liabilities) shall deliver and each Former Optionholder shall acquire the portion of the Option Consideration consisting of Therapeutics Common Shares, and in respect of each Therapeutics Common Share so delivered, Amalco shall cease to be the registered holder thereof and Amalco’s name shall be removed from the register of shareholders of Therapeutics, and the name of each Former Optionholder shall be recorded as the registered holder of such Therapeutics Common Share and shall be deemed to be the legal and beneficial owner thereof (free and clear of all liens, charges, encumbrances and any other rights of others); and
(iv) unless Therapeutics determines otherwise, Therapeutics shall file an election with the Canada Revenue Agency to be a public corporation for the purposes of the Tax Act, such election to be effective concurrently with the acquisition of the Therapeutics Common Shares pursuant to this Section 3.1(l).
Appears in 1 contract
Arrangement. Commencing on at the Arrangement Effective Time, each of the following events shall occur and shall be deemed to occur sequentially in the following order set out below without any further authorization, act or formality of or by formality, in each case, unless stated otherwise, effective as at five-minute intervals starting at the Company, Parent or any other PersonArrangement Effective Time:
(a) Each Class A all applicable Company Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share Instruments outstanding immediately prior to the Arrangement Effective Time (excluding, for greater certainty, the Remaining Company Convertible Instruments) shall, without further action by or on behalf of a holder of Company Convertible Instruments, be converted into Company Shares pursuant to their terms and the terms of any Conversion Agreements;
(b) all Company Options outstanding immediately prior to the Arrangement Effective Time (whether vested or unvested), notwithstanding the terms of the Company Incentive Plan or any applicable award agreements in relation thereto, shall be and be deemed to be irrevocably transferred unconditionally vested and exercisable, and each Company Optionholder shall, without any further action by or on behalf of such Company Optionholder, be deemed to Parent have exercised such Company Optionholder’s Company Options in exchange for, in each case, that for such number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares (rounded down to Parent:
the nearest whole Company Share) having an aggregate fair market value equal to (A) the aggregate fair market value of the Company Shares underlying such Company Optionholder’s Company Options, minus (B) the aggregate Option Exercise Price in respect of such Company Optionholder’s Company Options, and none of the Company or SPAC shall be obligated to pay such Company Optionholder any amount in respect of such Company Option; and, with respect to each Company Option that is exercised pursuant to this Section 2.3(b), as of the effective time of such exercise: (i) each the holder of such Company Shares thereof shall cease to be the holder of such Company Shares and Option, (ii) the holder thereof shall cease to have any rights as a holder in respect of such Company Option or under the Company Incentive Plan, as applicable, other than the right to receive the consideration to which such holder is entitled pursuant to this Section 2.3(b), (iii) such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangementregister, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Sharesall agreements, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding grants and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject similar instruments relating thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.;
Appears in 1 contract
Sources: Business Combination Agreement (Oxus Acquisition Corp.)
Arrangement. Commencing on at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence, except where noted, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareat the Effective Time, Class B Convertible Preferred Share, Class C Convertible Preferred Share the Rights Agreement shall be terminated (and all rights thereunder shall expire) and shall be of no further force or effect;
(b) immediately following the preceding step,
(i) each Company Common Share held by a Dissenting Shareholder shall be, and shall be deemed to be, transferred to Amalgamation Sub by the holder thereof, without any further act or formality by or on behalf of the Dissenting Shareholder, and thereupon each Dissenting Shareholder shall cease to have any rights as holders of such Company Common Shares other than the rights set out in Article 4 hereof,
(ii) the registered holder thereof shall cease to be the registered holder of such Company Common Share and the name of such registered holder shall be removed from the register of Company Shareholders as of the time of this step; and
(iii) Amalgamation Sub shall be recorded as the registered holder of such Company Common Share and shall be deemed to be the legal and beneficial owner thereof free and clear of all Liens;
(c) immediately following the preceding step, each Company DSU outstanding immediately prior to the Effective Time shall be be, and shall be deemed to be, fully vested, and the Company shall pay each holder of a Company DSU an amount in cash equal to the product of (i) the Arrangement Mixed Consideration Value multiplied by (ii) the number of Company Common Shares subject to such Company DSU, all in full satisfaction of the obligations of the Company in respect of the Company DSUs and all of the Company DSUs, as well as the Company Non-Employee Director Deferred Stock Unit Plan, shall be, and shall be irrevocably transferred deemed to Parent be, terminated;
(d) concurrent with the preceding step, each Company PSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, fully vested, with performance goals deemed satisfied based on the maximum or highest level achievable under the Company PSU, and the Company shall issue to each holder of a Company PSU in exchange for, in each case, settlement of such PSU that number of shares of Parent Company Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title subject to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
PSU (iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock based on the Nasdaq Market on the last trading day prior to the Closing Date;
(ivdeemed satisfaction of performance goals) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, and the name of such holder shall be entered in the register of holders of Parent Common Stock recorded as the registered holder thereofof such Company Common Shares acquired pursuant to such Company PSUs all in full satisfaction of the obligations of the Company in respect of the Company PSUs and all of the Company PSUs shall be, and shall be deemed to be, terminated;
(ve) without any action on concurrent with the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirementspreceding step, each Company Option that is then RSU outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time shall be, and shall be deemed to be, fully vested, and the Company shall issue to each holder of a Company RSU in settlement of such RSU that number of Company Common Shares issuable pursuant to the terms of such Company RSU and the name of such holder shall be recorded as the registered holder of such Company Common Shares acquired pursuant to such Company RSUs all in full satisfaction of the obligations of the Company in respect of the Company RSUs and all of the Company RSUs shall be, and shall be deemed to be, terminated;
(including any repurchase rights or vesting provisionsf) immediately following the preceding step, if applicable)subject to the requirement of Section 7.4(c) of the Arrangement Agreement, except each Surrendered Company Option shall be, and shall be deemed to be, surrendered and transferred to the Company in consideration for the issuance by the Company of that number of Company Common Shares (the “Net Surrender Shares”) equal to, rounded down to the nearest whole share, (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would subject to such Surrendered Company Option immediately prior to the Effective Time minus (ii) the number of whole and partial (computed to the nearest four decimal places) Company Common Shares subject to such Surrendered Company Option that, when multiplied by the Fair Market Value (as such term is defined in the applicable Company Stock Plan) of a Company Common Share as of immediately prior to the time of this step, is equal to the aggregate exercise price of such Surrendered Company Option, and the holder of such Surrendered Company Option shall be issuable upon exercise recorded on the register of holders of Company Common Shares as the registered holder of the Net Exercise Shares, all in full satisfaction of the obligations of the Company Unexercised in respect of the Surrendered Company Options and all of the Surrendered Company Options shall be, and shall be deemed to be, terminated;
(g) immediately following the preceding step, each Company Shareholder who has not deposited with the Arrangement Exchange Agent a duly completed Letter of Transmittal and Election Form prior to the Election Deadline, or has otherwise failed to comply with the requirements of Section 3.3(b) and the Letter of Transmittal and Election Form, shall be deemed to have elected to receive, in respect of all Company Common Shares held by such holder (each such share, a “No Election Share”), the Arrangement Mixed Consideration;
(h) immediately following the preceding step, each outstanding Company Common Share (other than any Company Common Share held by Amalgamation Sub) shall be transferred and assigned to Amalgamation Sub in accordance with the election of such holder pursuant to Section 3.3 or deemed election of such holder pursuant to Section 3.2(g) in exchange for, subject to Sections 3.4 and 3.7, the payment by Amalgamation Sub of (i) the Arrangement Cash Consideration, (ii) the Arrangement Mixed Consideration or (iii) the Arrangement Share Consideration, as applicable, and in respect of each Company Common Share so transferred and assigned:
(i) the registered holder thereof shall cease to be the registered holder of such Company Common Share and the name of such registered holder shall be removed from the register of Company Shareholders as of the time of this step;
(ii) Amalgamation Sub shall be recorded as the registered holder of such Company Common Share and shall be deemed to be the legal and beneficial owner thereof free and clear of all Liens; and
(iii) there shall be added to the stated capital account maintained by Holdings for Holdings Common Shares an amount equal to the value as of — of the Holdings Common Shares, if any, issued in exchange for such Company Common Share;
(i) concurrent with the preceding step, in consideration for Holdings delivering, on behalf of Amalgamation Sub, Holdings Common Shares directly to the Selling Shareholders pursuant to Section 3.2(h), AS Common Shares (the “AS Delivered Common Shares”) with the aggregate fair market value equal to the fair market value of the aggregate number of Holdings Common Shares so delivered shall be issued to Holdings, and in respect thereof, there shall be added to the stated capital account maintained by Amalgamation Sub for AS Common Shares an amount equal to the fair market value of the aggregate number of Holdings Common Shares so delivered (the “Share Consideration Value”);
(j) immediately following the preceding step, each Company Option (and its tandem stock appreciation right) that is outstanding immediately prior to the time of this step (other than the Surrendered Company Options), whether or not vested, shall be exchanged for a Holdings Arrangement Option (with a tandem stock appreciation right) to acquire from Holdings that number of Holdings Common Shares equal to the product of: (i) the number of Company Common Shares subject to such Company Option immediately prior to the Effective Time multiplied by (yii) the Option Exchange Ratio, provided that the number of Holdings Common Shares issuable shall be rounded down to the nearest whole number of shares of Parent Holdings Common Stock, and (ii) the per share Shares. The exercise price for the shares of Parent per Holdings Common Stock issuable upon exercise of such Company Unexercised Share subject to a Holdings Arrangement Option will shall be an amount equal to the quotient equal to of: (xi) the per share exercise price for per Company Common Share subject to each such Company Unexercised Option immediately prior to before the Effective Time divided by (yii) the Option Exchange Ratio, provided that the aggregate exercise price payable on exercise of a Holdings Arrangement Option shall be rounded up to the nearest whole cent cent. Notwithstanding the foregoing, if it is determined in good faith that the excess of the aggregate fair market value of the Holdings Common Shares subject to the Holdings Arrangement Options immediately after the issuance of the Holdings Arrangement Options over the aggregate option exercise price for such shares pursuant to the Holdings Arrangement Options (a such excess referred to as the “Parent Replacement Option”In the Money Amount” of the Holdings Arrangement Options) would otherwise exceed the excess of the aggregate fair market value of the Company Common Shares subject to such Company Options immediately before the issuance of the Holdings Arrangement Options over the aggregate option exercise price for such shares pursuant to the Company Options, (such excess referred to as the In the Money Amount of the Company Options). Each Company Unexercised Option , the previous provisions shall be vested modified so that the In the Money Amount of the Holdings Arrangement Options does not exceed the In the Money Amount of the Company Options, but only to the extent necessary and in a manner that does not otherwise adversely affect the holder of the Holdings Arrangement Options. Except as otherwise provided herein, each Holdings Arrangement Option (and its tandem stock appreciation right) shall be on the same terms and conditions as were applicable to the exchanged Company Option (and its tandem stock appreciation right) immediately before the Effective Time (including, but not limited to, the term to expiry, conditions to and manner of exercising and vesting schedule) and Holdings shall assume all the obligations of the Company under the Company Stock Plans pertaining to the Company Options (and their tandem stock appreciation rights) and the agreements evidencing the grants thereof. Holdings shall comply with the requirements of Section 7.4(c) of the Arrangement Agreement with respect to each Holdings Arrangement Option until final settlement of all Holdings Arrangement Options;
(k) immediately following the Effective Time as preceding step, transactions are undertaken pursuant to transfer agreements that result in all AS Delivered Common Shares acquired by Holdings pursuant to Section 3.2(i) being contributed to LLC. Thereafter LLC shall be deemed to be the same percentage legal and beneficial owner thereof free and clear of all Liens;
(l) following the total number of shares subject thereto as it was vested immediately prior to preceding step and at the Merger Effective Time, except the Merger shall become effective;
(m) coincident with the Merger Effective Time,
(i) Holdings, the Partnership and the Trustee shall execute the Voting Trust Agreement, and
(ii) Holdings shall issue to and deposit with the extent such Company Unexercised Option (either by its terms or Trustee the Special Voting Share, in consideration of the payment to Holdings of $1.00 to be thereafter held of record by the terms Trustee as trustee for and on behalf of, and for the use and benefit of, the holders of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, the Exchangeable Units in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawVoting Trust Agreement;
(vin) The immediately following the preceding step, the stated capital of the Company Option Plan Common Shares shall be cancelledreduced to $1.00 without any distribution; and
(viio) at 5:00 p.m. (Toronto time) on the first Business Day following the Effective Date,
(i) Amalgamation Sub and the Company shall amalgamate to form New Amalco with the same effect as if they were amalgamated under s. 181 of the CBCA, except that the separate legal existence of the Company will not cease and the Company will survive the amalgamation, as more fully described in Section 3.5; and
(ii) without any action on limiting the part of Parentforegoing, the separate legal existence of Amalgamation Sub will cease without Amalgamation Sub being liquidated or wound up, Amalgamation Sub and the Company or will continue as one Company, and the holder property of that certain warrant to purchase Amalgamation Sub (other than Company Common Shares dated as of October 5, 2007 issued held by Amalgamation Sub and any amounts owing by the Company (to Amalgamation Sub) will become the “Warrant”), the Warrant shall be terminated as property of the Closing and shall be of no further force or effectNew Amalco.
Appears in 1 contract
Sources: Arrangement Agreement and Plan of Merger (Burger King Worldwide, Inc.)
Arrangement. Commencing on (a) As soon as reasonably practicable, Avenor shall apply to the Effective TimeCourt pursuant to section 192 of the CBCA for an order approving the Arrangement and, the following shall occur and shall be deemed to occur in the following order without any further authorizationconnection with such application, act or formality of or by the Company, Parent or any other PersonAvenor shall:
(ai) Each Class A Convertible Preferred Sharefile, Class B Convertible Preferred Shareproceed with and diligently prosecute an application for an Interim Order providing for, Class C Convertible Preferred Share among other things, the calling and Company Common Share outstanding immediately prior holding of the Avenor Meeting for the purpose of considering and, if deemed advisable, approving the Arrangement, which meeting shall be held on the same date and at the same time, if practicable, or as near as may be, as the Bowater Meeting; and
(ii) subject to obtaining the approvals as contemplated in the Interim Order and as may be directed by the Court in the Interim Order, take all steps necessary or desirable to submit the Arrangement to the Effective Time Court and apply for the Final Order, and, subject to the fulfilment or waiver of the conditions set forth in Article 6, Avenor shall deliver Articles of Arrangement to the Director and such other documents as may be and be deemed required to be irrevocably transferred give effect to Parent in exchange for, in each case, that number of shares of Parent Common Stock the Arrangement as determined in accordance with the formula set out on Exhibit A attached heretosoon as reasonably practicable.
(b) Upon The Articles of Arrangement shall, with such other matters as are necessary to effect the transfer Arrangement, and all as subject to the provisions of all Company Shares to Parentthe Plan of Arrangement, provide as follows:
(i) each holder the authorized share capital of such Company Shares shall cease to be Avenor or the holder Subsidiary of such Company Shares and such holder’s name Bowater, as the case may be, shall be removed from increased or modified by the applicable securities register creation of Company Sharesan unlimited number of Avenor Exchangeable Shares having the rights, privileges, restrictions and conditions described in the Plan of Arrangement;
(ii) legal each shareholder of Avenor (other than shareholders who validly exercise Dissent Rights and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed who are ultimately entitled to be paid the transferee fair value of the Avenor Common Shares held by them) shall be entitled to receive $35 for each Avenor Common Share held, which shall be payable in cash, Avenor Exchangeable Shares or Bowater Common Shares, or a combination thereof, on the terms and legal subject to the limitations and beneficial owner of such Company Shares and will be entered conditions set out in the applicable securities register Plan of the Company as the sole shareholder thereof;Arrangement; and
(iii) no fractional shares Bowater shall become the holder, directly or indirectly, of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms issued and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company outstanding Avenor Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company than those Avenor Common Shares dated as of October 5, 2007 issued held by the Company (the “Warrant”Avenor Common Shareholders who have exercised Dissent Rights), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Arrangement Agreement (Bowater Inc)
Arrangement. Commencing on At the Effective Time, Time each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach SMART Option outstanding immediately prior to the Effective Time (whether vested or unvested), Class B Convertible Preferred Sharenotwithstanding the terms of the SMART Equity Incentive Plan, Class C Convertible Preferred shall be deemed to be unconditionally vested and exercisable, and such SMART Option shall, without any further action by or on behalf of a holder of SMART Options, be deemed to be assigned and transferred by such holder to SMART in exchange for a cash payment from SMART to such holder equal to the amount (if any) by which the Cash Consideration exceeds the exercise price of such SMART Option, less applicable withholdings, and each such SMART Option for each Common Share subject to such SMART Option shall immediately be cancelled and, for greater certainty, where such amount is a negative, SMART shall pay the holder of such SMART Option $0.001 in respect of such SMART Option;
(b) each SMART RSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the SMART Equity Incentive Plan, shall be deemed to be unconditionally vested, and Company such SMART RSU shall, without any further action by or on behalf of a holder of such SMART RSU, be deemed to be assigned and transferred by such holder to SMART in exchange for a cash payment from SMART equal to the Cash Consideration in respect of each SMART RSU, less applicable withholdings, and each such SMART RSU shall immediately be cancelled;
(c) each SMART DSU outstanding immediately prior to the Effective Time, notwithstanding the terms of the SMART Equity Incentive Plan, shall, without any further action by or on behalf of a holder of such SMART DSU, be deemed to be assigned and transferred by such holder to SMART in exchange for a cash payment from SMART equal to the Cash Consideration in respect of each SMART DSU, less applicable withholdings, and each such SMART DSU shall immediately be cancelled;
(d) each SMART PSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the SMART Equity Incentive Plan, shall, without any further action by or on behalf of a holder of such SMART PSU, immediately be cancelled and, for greater certainty, SMART shall pay the holder of such SMART PSU $0.001 in respect of such SMART PSU;
(e) (i) each holder of SMART Options, SMART RSUs, SMART DSUs and SMART PSUs shall cease to be a holder of such SMART Options, SMART RSUs, SMART DSUs and SMART PSUs, (ii) such holder’s name shall be removed from each applicable register of holders maintained by or on behalf of SMART, (iii) the SMART Equity Incentive Plan and all agreements relating to the SMART Options, SMART RSUs, SMART DSUs and SMART PSUs shall be terminated and shall be of no further force and effect, and (iv) such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Sections 2.3(a), 2.3(b) and 2.3(c), at the time and in the manner specified in Sections 2.3(a), 2.3(b), 2.3(c) and Section 4.1(c);
(f) each of the Common Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised, shall be deemed to have been transferred without any further act or formality to AcquisitionCo (free and clear of all Liens) in consideration for a debt claim against AcquisitionCo for the amount determined under Article 3, and:
(i) such Dissenting Holders shall cease to be the holders of such Common Shares and to have any rights as holders of such Common Shares other than the right to be paid fair value for such Common Shares as set out in Section 3.1;
(ii) such Dissenting Holders’ names shall be removed as the holders of such Common Shares from the register of the Common Shares maintained by or on behalf of SMART; and
(iii) AcquisitionCo shall be deemed to be the transferee of such Common Shares free and clear of all Liens, and shall be entered in the register of the Common Shares maintained by or on behalf of SMART; and
(g) each Common Share outstanding immediately prior to the Effective Time (other than Common Shares held by a Dissenting Holder who has validly exercised such holder’s Dissent Right), shall be and without any further action by or on behalf of any holder of Common Shares, be deemed to be irrevocably assigned and transferred by the holder thereof to Parent AcquisitionCo (free and clear of all Liens) in exchange forfor the Cash Consideration, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand:
(i) each holder the holders of such Company Common Shares shall cease to be the holder holders thereof and to have any rights as holders of such Company Common Shares and other than the right to be paid the Cash Consideration in accordance with this Plan of Arrangement;
(ii) such holder’s name holders’ names shall be removed from the applicable securities register of Company Shares;the Common Shares maintained by or on behalf of SMART; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and AcquisitionCo shall be deemed to be the transferee and legal and beneficial owner of such Company Common Shares (free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iiiall Liens) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise maintained by or on behalf of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectSMART.
Appears in 1 contract
Arrangement. 4.1 Commencing on as of the Effective Time, the following shall events or transactions will occur sequentially in the order set out below unless otherwise noted and shall will be deemed to occur in the following order without any further authorization, act or formality required on the part of or by the Companyany Person, Parent or any other Personexcept as expressly provided herein:
(a) Each Class A The Senior Bank Facility shall be amended to no less than Cdn$225.0 million and no less than Cdn$50.0 million will be drawn thereunder by ▇▇▇▇▇▇▇;
(b) ▇▇▇▇▇▇▇ Finance will determine, in its sole discretion, the extent to which cash, New Notes and Mandatory Convertible Preferred ShareNotes are to comprise the Cash Alternative and the New Note Alternative, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior subject to the Effective Time terms thereof;
(c) ▇▇▇▇▇▇▇ will loan to ▇▇▇▇▇▇▇ Finance the cash components required under the Cash Alternative and, if applicable, the New Note Alternative, as well as the aggregate amount of the fees and expenses due to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., the Indenture Trustee and counsel to the Parties pursuant to Section 4.1(f) and the accrued interest payable by ▇▇▇▇▇▇▇ Finance pursuant to Section 4.1(d);
(d) ▇▇▇▇▇▇▇ Finance shall pay the accrued interest to the Indenture Trustee or its nominee as registered holder of the global notes and on behalf of all Noteholders, and the Indenture Trustee shall pay (or cause to be paid) all such accrued interest to the Noteholders, without abatement or rights of setoff or counterclaim of any nature;
(e) Each Noteholder shall irrevocably exchange and be deemed to be irrevocably transferred transfer all of its Senior Notes and all of its rights under the Senior Notes and the Note Indenture to Parent ▇▇▇▇▇▇▇ Finance in exchange for: (i) cash and, in if applicable, New Notes under the New Note Indenture and/or Mandatory Convertible Notes under the Mandatory Convertible Note Indenture, all pursuant to the Cash Alternative; or (ii) New Notes under the New Note Indenture and, if applicable, cash and/or Mandatory Convertible Notes under the Mandatory Convertible Note Indenture, all pursuant to the New Note Alternative, allocated to each case, that number of shares of Parent Common Stock Noteholder as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentfollows:
(i) Each Noteholder shall receive for each holder $1,000 of such Company Shares shall cease Noteholder’s Principal Claim Amount, at the election of such Noteholder:
(A) $940 in cash, to an aggregate maximum of $184.5 million; provided that, to the extent the aggregate elections for the Cash Alternative by Electing Noteholders exceed $184.5 million, then $940 consisting of a combination of:
(I) cash, to an aggregate maximum of not less than $184.5 million and not more than $229.5 million; and, if applicable
(II) Mandatory Convertible Notes, to a maximum aggregate principal amount of $45.0 million; and/or
(III) New Notes, to a maximum aggregate principal amount of $45.0 million, for all Electing Noteholders electing to receive the Cash Alternative, with the relative allocation of cash, Mandatory Convertible Notes and New Notes to be determined by ▇▇▇▇▇▇▇ Finance in its sole discretion and applied in the holder same proportion to all Electing Noteholders electing the Cash Alternative; or
(B) $940 of principal amount of New Notes for all Noteholders which have elected or are deemed to have elected to receive the New Note Alternative; provided that, to the extent the aggregate elections (including deemed elections) for the New Note Alternative exceed $193.5 million, then $940 consisting of a combination of:
(I) New Notes, to a maximum aggregate principal amount of not less than $193.5 million and not more than $238.5 million; and, if applicable
(II) Mandatory Convertible Notes, to a maximum aggregate principal amount of $45.0 million; and/or
(III) cash, to an aggregate maximum of $45.0 million, for all Noteholders electing (or deemed to be electing) to receive the New Note Alternative, with the relative allocation of New Notes, Mandatory Convertible Notes and cash to be determined by ▇▇▇▇▇▇▇ Finance in its sole discretion and applied in the same proportion to all Noteholders electing (or deemed to be electing) the New Note Alternative; in exchange for such Senior Notes; provided that:
(C) if the aggregate amount to be received by Electing Noteholders electing to receive the Cash Alternative is greater than the Maximum Cash/Note Consideration, then the consideration that will be paid to each such Noteholder for its Senior Notes will be equal to such Noteholder’s pro rata share (determined as a fraction of all Senior Notes for which a Cash Alternative election has been made) of:
(I) the Maximum Cash/Note Consideration; and
(II) such combination of New Notes and, if applicable, cash and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) equal to the difference between (A) the Maximum Note Consideration; and (B) the amount of such Company Shares combination of New Notes and, if a applicable, cash and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) that is payable to Noteholders who have elected or are deemed to have elected the New Note Alternative;
(D) if the aggregate principal amount to be received by Noteholders which have elected or are deemed to have elected to receive the New Note Alternative is greater than the Maximum Note Consideration, then the consideration to be issued to each such Noteholder for its Senior Notes will be equal to such Noteholder’s pro rata share (determined as a fraction of all Senior Notes for which a New Note Alternative election has been made or has been deemed to have been made) of:
(I) the Maximum Note Consideration; and
(II) such combination of cash and, if applicable, New Notes and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) equal to the difference between (A) the Maximum Cash/Note Consideration; and (B) the amount of such holdercombination of cash and, if applicable, New Notes and/or Mandatory Convertible Notes as ▇▇▇▇▇▇▇ Finance has determined pursuant to Section 4.1(b) that is payable to Electing Noteholders who have elected the Cash Alternative; and
(E) any Noteholder who determines not to make an election, does not properly complete, execute and deliver the Form of Election or does not complete, execute and deliver the Form of Election prior to the Election Deadline, will automatically be deemed to have elected the New Note Alternative and to receive New Notes and, if applicable, cash and/or Mandatory Convertible Notes in an amount equal to $940 per $1,000 of such Noteholder’s name shall Principal Claim Amount for all of their Senior Notes pursuant thereto; provided that New Notes and, if applicable, Mandatory Convertible Notes will be removed from issued in $1.00 increments only, such that if the applicable securities register combined effects of Company Sharesthe exchange of a Noteholder’s Senior Notes and proration, if applicable, would otherwise result in a fractional New Note or, if applicable, Mandatory Convertible Note being issued, the number of New Notes or Mandatory Convertible Notes, respectively, issued to such Noteholder will be decreased to the nearest $1.00 increment;
(ii) legal Noteholders who receive: (i) cash and, if applicable, New Notes and/or Mandatory Convertible Notes, all pursuant to the Cash Alternative; or (ii) New Notes and, if applicable, cash and/or Mandatory Convertible Notes, all pursuant to the New Note Alternative, shall receive cash, New Notes and beneficial title Mandatory Convertible Notes, as applicable, in a principal amount equal to such Company Shares will vest $940 per $1,000 of that Noteholder’s Principal Claim Amount in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner respect of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofSenior Notes;
(iii) no fractional shares Each of Parent Common Stock the New Note Indenture and the Mandatory Convertible Indenture shall be issued executed and become effective as of the time the New Notes and the Mandatory Convertible Notes, respectively, are issued; and
(f) ▇▇▇▇▇▇▇ Finance shall pay all fees and expenses due to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., the Indenture Trustee and counsel to the Parties reasonably incurred by, and due to, any of the foregoing in connection with the Arrangementdevelopment, negotiation and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms implementation of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectRecapitalization.
Appears in 1 contract
Arrangement. Commencing on Pursuant to the Arrangement, at the Effective Time, the following transactions shall occur and shall be deemed to occur consecutively in the following order and at the following times without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharefirst, Class B Convertible Preferred Shareat the Effective Time, Class C Convertible Preferred Share the following transactions shall occur simultaneously:
(i) each Company Employee DSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Company Employee DSU Plan, shall, without any further action by or on behalf of the holder thereof, be deemed to be assigned and transferred by such holder to the Company Common Share in exchange for a cash payment from the Company equal to the amount of the Consideration Cash Value, and each such Company Employee DSU shall immediately be cancelled;
(ii) each Company Employee Performance DSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Company Employee DSU Plan, shall, without any further action by or on behalf of the holder thereof, be deemed to be assigned and transferred by such holder to Company in exchange for a cash payment from Company equal to the amount of the Consideration Cash Value and each such Company Employee Performance DSU shall immediately be cancelled, provided that any Company Employee Performance DSU in respect of which the performance goals have not been satisfied shall be cancelled for no consideration;
(iii) each Company Employee PCSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Company Employee DSU Plan, shall, without any further action by or on behalf of the holder thereof, be deemed to be assigned and transferred by such holder to Company in exchange for a cash payment from Company equal to the amount of the Consideration Cash Value and each such Company Employee PCSU shall immediately be cancelled, provided that any Company Employee Performance PCSU in respect of which the performance goals have not been satisfied shall be cancelled for no consideration;
(iv) each Company Director DSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Company Director DSU Plan, shall, without any further action by or on behalf of the holder thereof, be deemed to be assigned and transferred by such holder to Company in exchange for a cash payment from Company equal to the amount of the Consideration Cash Value, and each such Company Director DSU shall immediately be cancelled;
(v) notwithstanding the foregoing, any payment or settlement in respect of a Company DSU Award that immediately prior to the exchange described in this Section 3.1(a) constituted deferred compensation subject to Section 409A of the U.S. Internal Revenue Code shall be made on the earliest practicable payment or settlement date for such Company DSU Award that does not give rise to a violation of, or the imposition of taxes or penalties under, Section 409A of the U.S. Internal Revenue Code;
(b) second, and five minutes after the Effective Time, the following transactions shall occur simultaneously:
(i) each IQ Warrant that is outstanding and unexercised as of immediately prior to the Effective Time shall be cancelled and be deemed converted into the right to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed receive from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest Acquiror an amount in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent)cash, without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (xi) the excess, if any, of the Consideration Cash Value over the exercise price per Company Common Share of such IQ Warrant, multiplied by (ii) the number of Company Common Shares that would be issuable upon exercise subject to such IQ Warrant as of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time; provided that any IQ Warrant that has an exercise price per Company Common Share that equals or exceeds the Consideration Cash Value shall be cancelled for no consideration.
(c) third, except and ten minutes after the Effective Time, all Company Common Shares held by Dissenting Shareholders shall be deemed to the extent such Company Unexercised Option have been assigned and transferred (either by its terms or by the terms free and clear of another Contractall Liens) provides to Acquiror in exchange for acceleration of vesting thereof. Each Company Unexercised Option shall, a debt claim against Acquiror in an amount determined in accordance with its termsSection 5.1 hereof, and
(i) such Dissenting Shareholders shall cease to be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise holders of such Company Unexercised Option shall Common Shares and to have any rights as Company Shareholders other than the right to be determined paid the fair value for such Company Common Shares as set out in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawSection 5.1;
(viii) The the name of each such holder will be removed as Company Option Plan shall be cancelledShareholders, as applicable, from the registers of Company Shareholders, as applicable, maintained by or on behalf of Company in respect of such Company Common Shares; and
(viiiii) without any action on Acquiror shall be deemed to be the part transferee of Parent, the Company or the holder of that certain warrant to purchase such Company Common Shares dated as (free and clear of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing any Liens) and shall be entered in the registers of no further force Company Shareholders maintained by or effecton behalf of Company.
(d) fourth, and fifteen minutes after the Effective Time, the following transactions shall occur simultaneously:
(i) each Company Common Share that is a Cash Electing Share shall be deemed to have been assigned and transferred (free and clear of all Liens) to Acquiror in exchange for the Per Share Cash Amount; and
(ii) each Company Common Share that is a Stock Electing Share shall be deemed to have been assigned and transferred (free and clear of all Liens) to Acquiror in exchange for the Per Share Stock Consideration.
Appears in 1 contract
Sources: Arrangement Agreement (Rayonier Advanced Materials Inc.)
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Person:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange forformality, in each case, that number of shares of Parent Common Stock as determined in accordance with effective at the formula set out on Exhibit A attached hereto.
Effective Time: (a) the Rights Plan shall be terminated; (b) Upon each outstanding Option, SAR and SPAU (whether vested or unvested), notwithstanding the transfer terms of all the applicable Company Shares Stock Plan, shall be deemed to Parent:
be unconditionally vested and exercisable, and such Option, SAR or SPAU: (i) shall, without any further action by or on behalf of the holder thereof, be transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount (if any) by which the Purchase Price exceeds the exercise price thereof, less applicable withholdings; and (ii) shall immediately be cancelled and all agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the consideration to which such holder is entitled pursuant to this Section 2.03(b) at the time and in the manner specified in Article IV; and (c) each holder outstanding PSU and DSU will be cancelled by the Company in exchange for a cash payment by the Company in the amount of such Company Shares shall cease the Purchase Price per PSU or DSU, as applicable, less applicable withholdings; (d) each Common Share outstanding at the Effective Time other than a Common Share held by (i) a Dissenting Holder who is ultimately entitled to be paid the holder fair value of the Common Shares held by such Company Dissenting Holder, or (ii) Parent, Acquisition Sub or any Affiliate thereof (which shall not be exchanged under the Arrangement and shall remain outstanding as a Common Share held by Parent, Acquisition Sub or any Affiliate thereof), shall be transferred to Acquisition Sub in exchange for the Purchase Price per Common Share in cash; (e) the names of the holders of the Common Shares and such holder’s name transferred to Acquisition Sub shall be removed from the applicable securities register registers of Company Shares;
(ii) legal holders of Common Shares and beneficial title to such Company Acquisition Sub shall be recorded as the registered holder of the Common Shares will vest in Parent so acquired and Parent will be and shall be deemed to be the transferee and legal and beneficial owner of such Company Shares thereof free and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions clear of any applicable stock option agreement liens or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawencumbrances;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share each Carta Option outstanding immediately prior to the Effective Time shall be and (whether vested or unvested), notwithstanding the terms of such Carta Option or the Carta Stock Option Plan, shall, without any further action by or on behalf of the holders of Carta Options, be deemed to be irrevocably assigned and transferred by such holders to Parent Carta in exchange forfor a cash payment of $0.00001 from Carta, in and each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.such Carta Option shall immediately be cancelled;
(b) Upon concurrently with the transfer of all Company Shares preceding step, with respect to Parenteach Carta Option:
(i) each the holder of such Company Shares thereof shall cease to be the holder of such Company Shares and Carta Option;
(ii) such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofCarta Options;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangementall option agreements, award agreements, grants and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject similar instruments relating thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(viiiv) the holder thereof shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 2.3(a) at the time and in the manner specified in Section 2.3(a);
(c) immediately following the preceding step, each Carta Share and each Carta Note outstanding immediately prior to the Effective Time held by a Carta Shareholder or a holder of Carta Notes, that is an Eligible Transferor shall, without any further action by or on behalf of any Carta Shareholder or Carta Noteholder, be deemed to be assigned and transferred by the part of Parentholder thereof to the Carta Limited Partnership in exchange for the following consideration:
(i) for each Series A Preferred Share, the Company Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class A LP Unit;
(ii) for each Series B Preferred Share, the Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class B LP Unit;
(iii) for each Series C Preferred Share, the Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class C LP Unit;
(iv) for each Carta Common Share, the Carta Limited Partnership shall issue to the applicable Carta Shareholder, one Class D (MIP) LP Unit;
(v) for each $1.00 of Carta 2019 Notes, the Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class F (2019) LP Unit; and
(vi) for each $1.00 of Carta 2020 Notes, the Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class G (2020) LP Unit;
(d) concurrently with the preceding step, each Former Carta Shareholder and each Former Carta Noteholder that was an Eligible Transferor whose Carta Shares or Carta Notes were assigned and transferred in accordance with Section 2.3(c) shall, without any further action by or on behalf of such Former Carta Shareholder or Former Carta Noteholder, be deemed to have signed and be and become a party to the Limited Partnership Agreement, and each Former Carta Shareholder and Former Carta Noteholder that is an Eligible Transferor shall be deemed to have irrevocably provided authorization to the General Partner to make the tax election specified in, and in accordance with Section 2.5(a) and an income tax election pursuant to subsection 98(3) of the ITA in connection with the dissolution of the Carta Limited Partnership;
(e) three hours and fifteen minutes after the preceding step, each Carta Share and each Carta Note outstanding immediately prior to the Effective Time held by a Carta Shareholder or a Carta Noteholder that is not an Eligible Transferor shall, without any further action by or on behalf of any Carta Shareholder or Carta Noteholder, be deemed to be assigned and transferred by the holder thereof to the Carta Limited Partnership in exchange for the following consideration:
(i) for each Series A Preferred Share, the Carta Limited Partnership shall issue to the Carta Shareholder, one Class A LP Unit;
(ii) for each Series B Preferred Share, the Carta Limited Partnership shall issue to the Carta Shareholder, one Class B LP Unit;
(iii) for each Series C Preferred Share, the Carta Limited Partnership shall issue to the Carta Shareholder, one Class C LP Unit;
(iv) for each Carta Common Share, the Carta Limited Partnership shall issue to the Carta Shareholder, one Class D (MIP) LP Unit;
(v) for each $1.00 of Carta 2019 Notes, the Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class F (2019) LP Unit; and
(vi) for each $1.00 of Carta 2020 Notes, the Carta Limited Partnership shall issue to the applicable Carta Noteholder, one Class G (2020) LP Unit;
(f) concurrently with the preceding step, each Former Carta Shareholder and each Former Carta Noteholder that certain warrant was not an Eligible Transferor whose Carta Shares or Carta Notes were assigned and transferred in accordance with Section 2.3(e) shall, without any further action by or on behalf of such Former Carta Shareholder, be deemed to purchase Company Common Shares dated as have signed and be and become a party to the Limited Partnership Agreement;
(g) immediately following the preceding step, (A) each Carta Share and all Carta Notes then held by the Carta Limited Partnership shall, without any further action by or on behalf of October 5the Carta Limited Partnership, 2007 be deemed to be transferred and assigned by the Carta Limited Partnership to Mogo in exchange for the Mogo Share Consideration being issued by Mogo to the Company Carta Limited Partnership, and (the “Warrant”), the Warrant B) each Former Carta Shareholder and Former Carta Noteholder shall be terminated as of deemed to have irrevocably provided authorization to the Closing General Partner to make the tax election specified in, and shall in accordance with, Section 2.5(b); and
(h) the exchanges and cancellations provided for in this Section 2.3will be of no further force or effectdeemed to occur at the times set out in this Section 2.3, notwithstanding certain procedures related thereto may not be completed until after such times.
Appears in 1 contract
Sources: Arrangement Agreement (Mogo Inc.)
Arrangement. Commencing on Subject to the Effective Timesatisfaction or waiver of the conditions set out within Article 7 of the Arrangement Agreement in accordance with the relevant provisions of the Arrangement Agreement, the following transactions shall occur and shall be deemed to occur and be completed in the following order on the Effective Date without any further authorization, act or formality of or by formality, in each case effective as at five minute intervals starting at the CompanyEffective Time (unless stated otherwise), Parent or any other Personprovided that the purchase and sale provided for in Section 3.01 shall have occurred prior to the Effective Time:
(a) Each Class A Convertible Preferred ShareHoldco shall amalgamate with Parentco to form one corporation, Class B Convertible Preferred Sharewith the same effect as if Holdco and Parentco had amalgamated under Section 269 of the BCBCA, Class C Convertible Preferred except that the separate legal existence of Parentco shall not cease and Parentco will survive the amalgamation (Parentco, as such surviving entity, the “Resulting Issuer”), in accordance with the following, all of which shall occur and become effective simultaneously at the time of the amalgamation:
(i) the separate legal existence of Holdco shall cease without Parentco being liquidated or wound up and Holdco and Parentco shall continue as one company;
(ii) the notice of articles and articles of the Resulting Issuer shall be substantially in the form of the notice of articles and articles of Parentco, subject to the other terms of this Plan of Arrangement;
(A) each Holdco Share issued and Company Common Share outstanding immediately prior to the Effective Time amalgamation shall automatically be exchanged for the Tevva Consideration; (B) the authorized capital of the Resulting Issuer shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company same as the sole shareholder thereof;
authorized capital of Parentco immediately prior to the amalgamation; and (iiiC) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangementforegoing, and no certificates or scrip for any such fractional shares the capital of the Resulting Issuer in respect of the Resulting Issuer Shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded equal to the nearest whole cent), without interest, determined by multiplying such fraction by capital of Holdco in respect of the closing price of a share of Parent Common Stock on Holdco Shares immediately before the Nasdaq Market on the last trading day prior to the Closing DateEffective Time;
(iv) with respect to each share the property, rights and interests of Parent Common Stock issued to a former holder of Company Shares, the name of such holder Holdco and Parentco shall be entered in the register property, rights and interests of holders of Parent Common Stock as the registered holder thereofResulting Issuer;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) Resulting Issuer shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price liable for the shares liabilities and obligations of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable Holdco and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawParentco;
(vi) The Company Option Plan any existing cause of action, claim or liability to prosecution of Holdco or Parentco shall be cancelled; andunaffected and any legal proceeding being prosecuted or pending by or against either Holdco or Parentco may be prosecuted, or by its prosecution may be continued, as the case may be, by or against the Resulting Issuer;
(vii) without any action on a conviction against, or ruling, order or judgment in favour of or against either ▇▇▇▇▇▇ or Parentco may be enforced by or against the part Resulting Issuer;
(viii) the name of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Resulting Issuer shall be terminated as “Tevva Motors, Inc.”;
(ix) the first directors of the Closing and Resulting Issuer following the amalgamation shall be of no further force or effect.be:
(A) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(B) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (C) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Arrangement Agreement (Electrameccanica Vehicles Corp.)
Arrangement. Commencing on at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order sequence, in each case without any further authorization, act or formality of or by the CompanyNovamind, Parent Numinus or any other Personperson:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share each Novamind RSU outstanding immediately prior to the Effective Time shall be immediately and unconditionally vest, notwithstanding the terms of the Novamind RSU Plan and shall, without any further action by or on behalf of the Novamind RSU Holder thereof, be deemed to be irrevocably surrendered, assigned and transferred by such Novamind RSU Holder to Parent Novamind (free and clear of all Encumbrances) in exchange for, in each case, that for the number of Novamind Shares equal to: (i) the number of Novamind Shares a holder is entitled to under each Novamind RSU; minus (ii) the number of Novamind Shares that has a value equal to the aggregate of the amount required under applicable law to be withheld in respect of such surrender, and, for certainty, where such amount is negative, no Novamind Shares shall be issued. The Novamind Shares will be issued to such Novamind RSU Holder as fully paid and non-assessable shares in the capital of Parent Common Stock as determined in accordance Novamind; provided that no share certificates shall be issued with the formula set out on Exhibit A attached hereto.respect to such shares;
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares Novamind RSU Holder shall cease to be the a holder of such Company Shares and Novamind RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Novamind, (iii) the applicable securities register RSU Plan and all agreements relating to the Novamind RSUs shall be terminated and shall be of Company no further force and effect and (iv) each Novamind RSU Holder will thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 3.1(a) at the time and in the manner specified in Section 3.1(a);
(c) each Novamind Share held by a Dissenting Novamind Shareholder shall be deemed to be acquired by Novamind from the Dissenting Novamind Shareholder, without any further act or formality on its part, free and clear of all Encumbrances, in consideration for a debt claim against Novamind for an amount determined and payable in accordance with Article 4 hereof, and:
(i) such Dissenting Novamind Shareholders shall cease to be the holders of such Novamind Shares and to have any rights as holders of such Novamind Shares, other than the right to be paid fair value for such Novamind Shares (with Novamind funds not directly or indirectly provided by Numinus or any affiliate of Numinus), as set out in Article 4 hereof;
(ii) legal such Dissenting Novamind Shareholders’ names shall be removed as the holders of such Novamind Shares from the register of Novamind Shares maintained by or on behalf of Novamind; and
(iii) such Novamind Shares shall be cancelled and beneficial title returned to treasury;
(d) each Novamind Share outstanding (other than Novamind Shares held by a Dissenting Novamind Shareholder, Numinus or any Subsidiary of Numinus) shall be transferred to Numinus in exchange for the Share Consideration, and:
(i) the holders of such Company Novamind Shares will vest shall cease to be the holders thereof and to have any rights as holders of such Novamind Shares, other than the right to receive the Share Consideration in Parent and Parent will respect of such Novamind Shares in accordance with the Plan of Arrangement;
(ii) such holders’ names shall be and removed as the holders of such Novamind Shares from the register of Novamind Shares maintained by or on behalf of Novamind; and
(iii) Numinus shall be deemed to be the transferee and legal and beneficial owner of such Company Shares Novamind Shares, free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangementall Encumbrances, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders Novamind Shares maintained by or on behalf of Parent Common Stock Novamind as the registered holder thereofof such Novamind Shares;
(ve) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Novamind Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each Company Unexercised Option will cease to represent an option or other right to acquire Novamind Shares and will be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a fully vested option (a “Replacement Option”) to purchase from Numinus such number of whole shares of Parent Common Stock Numinus Shares equal to the product of (xA) the that number of Company Common Novamind Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock were issuable upon exercise of such Company Unexercised Novamind Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except multiplied by (B) the Exchange Ratio, rounded to the extent nearest whole number of Numinus Shares, at an exercise price per Numinus Share equal to the quotient determined by dividing: (X) the exercise price per Novamind Share at which such Company Unexercised Novamind Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio, rounded to the nearest whole cent. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the All other terms and conditions of exercise such Replacement Option, including the term to expiry, conditions to and manner of such Company Unexercised exercising, shall be the same as the Novamind Option for which it was exchanged, and any certificate or option agreement previously evidencing the Novamind Option shall thereafter evidence and be determined in deemed to evidence such manner so as Replacement Option. The term of any such Replacement Option, when issued, shall be the earlier of (i) the expiry date of the original Novamind Option granted and (ii) four months following the time the holder ceased to comply to be a valid participant under the greatest extent possible with Subsection terms of the Replacement Option. Notwithstanding any of the foregoing, it is intended that the provisions of subsection 7(1.4) of the Canadian Tax Act apply to the exchange of a Novamind Option for a Replacement Option, and accordingly, in the equivalent provisions event that the Replacement Option In-The- Money Amount (for greater certainty, otherwise determined without regard to this last sentence of Section (e)) in respect of a Replacement Option exceeds the Novamind Option In-The-Money Amount in respect of the Novamind Option for which it is exchanged, then the exercise price per Numinus Share under applicable provincial lawsuch Replacement Option will be increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the Replacement Option In-The-Money Amount (for greater certainty, after taking into account this last sentence of Section (e)) in respect of the Replacement Option does not exceed the Novamind Option In-The-Money Amount in respect of such Novamind Option. It is further intended that each Novamind Option that is held by a holder who is subject to taxation in the United States will be exchanged for a Replacement Option in a manner compliant with Section 409A of the U.S. Internal Revenue Code of 1986, as amended, and this Section (e) will be construed consistently with such intent;
(vif) The Company the Stock Option Plan and the Novamind RSU Plan shall be cancelledterminated; and
(viig) without any action the exchanges and cancellations provided for in this Section 3.1 will be deemed to occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectprocedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach Mogo Share held by a Dissenting Shareholder in respect of which the Mogo Shareholder has validly exercised his, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time her or its Dissent Rights shall be transferred and be deemed assigned by such Dissenting Shareholder to be irrevocably transferred to Parent in exchange forMogo (free and clear of any liens, in each case, that number charges and encumbrances of shares of Parent Common Stock as determined any nature whatsoever) in accordance with with, and for the formula consideration set out on Exhibit A attached hereto.forth in, Section 3.1;
(b) Upon with respect to each Mogo Share transferred and assigned in accordance with Section 2.4(a):
(i) the registered holder thereof shall cease to be the registered holder of such Mogo Share and the name of such registered holder shall be removed from the register of Mogo Shareholders as of the Effective Time;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Mogo Share; and
(iii) such Mogo Shares will be cancelled by Mogo for no consideration;
(c) Mogo and Difference SubCo shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of all Company Shares to Parentthe Business Corporations Act, and:
(i) each holder of such Company Mogo Share (other than Mogo Shares held by Difference) shall cease to be cancelled and the holder of such Company Shares and such holder’s name thereof shall be removed from issued the applicable securities register of Company SharesShare Consideration in respect thereof;
(ii) legal each Mogo Share held by Difference and beneficial title to such Company Shares will vest in Parent each Difference SubCo Share shall be cancelled and Parent will the holder thereof shall be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered issued one (1) common share in the applicable securities register capital of the Company as the sole shareholder thereofAmalco in respect of each such share;
(iii) no fractional shares as consideration for the issuance by Difference of Parent Common Stock shall be issued the Share Consideration described in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole centSection 2.4(c)(i), without interest, determined by multiplying such fraction by Amalco shall issue to Difference one (1) common share in the closing price capital of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior Amalco for each Difference Share issued pursuant to the Closing Date;Section Section 2.4(c)(i); and
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder outstanding Mogo Warrant shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
and shall be deemed to be exchanged for a warrant (v) without any action on the part of Parenteach, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised OptionReplacement Warrant”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially from Difference the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock Difference Shares equal to the product of (x) the number of Company Common Mogo Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior subject to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Mogo Warrant immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or All other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise a Replacement Warrant, including the term to expiry, conditions to and manner of exercise, will be the same as the Mogo Warrant for which it was exchanged;
(d) without limiting the generality of Section 2.4(c), Mogo and Difference SubCo shall continue as one company and, from and after the Effective Date:
(i) Amalco will own and hold the property of Mogo and Difference SubCo and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such Company Unexercised Option shall amalgamation, and all liabilities and obligations of Mogo and Difference SubCo, whether arising by contract or otherwise, may be determined in such manner so as to comply enforced against Amalco to the greatest same extent possible with Subsection 7(1.4as if such obligations had been incurred or contracted by it;
(ii) Amalco will continue to be liable for all of the Canadian Tax Act liabilities and obligations of Mogo and Difference SubCo;
(iii) other than the equivalent provisions Mogo Warrants exchanged under applicable provincial lawSection 2.4(c), all rights, contracts, permits and interests of Mogo and Difference SubCo will continue as rights, contracts, permits and interests of Amalco as if Mogo and Difference SubCo continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Mogo or Difference SubCo under any such rights, contracts, permits and interests;
(iv) any existing cause of action, claim or liability to prosecution will be unaffected;
(v) a civil, criminal or administrative action or proceeding pending by or against either Mogo or Difference SubCo may be continued by or against Amalco;
(vi) The Company Option Plan a conviction against, or ruling, order or judgment in favour of or against either Mogo or Difference SubCo may be enforced by or against Amalco;
(vii) the name of Amalco shall be cancelled“Mogo Finance Technology Inc.”;
(viii) Amalco shall be authorised to issue an unlimited number of common shares without par value;
(ix) the first directors of Amalco following the amalgamation shall be the same as the directors of Difference at the Effective Time;
(x) the articles and notice of articles of Amalco shall otherwise be substantially in the form of the articles and notice of articles of Mogo;
(xi) the stated capital of the common shares of Amalco will be an amount equal to the total of: (A) the aggregate paid-up capital (as such term is defined in the ITA) of the Mogo Shares described in Sections 2.4(c)(i) and 2.4(c)(ii) (which in each case, for greater certainty, does not include any paid-up capital attributable to the Mogo Shares described in Section 2.4(a)), and (B) the aggregate paid-up capital (as such term is defined in the ITA) of the Difference SubCo Shares described in Section 2.4(c)(ii), in each case as of the time; and
(viixii) without there shall be added to the stated capital of the Difference Shares an amount equal to the paid-up capital (as such term is defined in the ITA) of the Mogo Shares described in Section 2.4(c)(i) (which, for greater certainty, does not include any action paid-up capital attributable to the Mogo Shares described in Section 2.4(a)); and
(e) the exchanges and cancellations provided for in this Section 2.4 will be deemed to occur on the part of ParentEffective Date, notwithstanding certain procedures related thereto may not be completed until after the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, Time the following shall occur and shall be deemed to occur in the following order sequence as set out below without any further authorization, act or formality of or by formality, in each case effective as at one minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each all Sulliden Shares held by Dissenting Shareholders shall be deemed to have been transferred (free and clear of all Liens) to Rio Alto; and
(i) such Dissenting Shareholders shall cease to be the holders of such Sulliden Shares and to have any rights as Sulliden Shareholders other than the right to be paid the fair value for such Sulliden Shares as set out in Article 4;
(ii) the name of each such Dissenting Shareholders shall be removed as a Sulliden Shareholder from the registers of Sulliden Shareholders maintained on or on behalf of Sulliden; and
(iii) such Sulliden Shares so transferred to Rio shall thereupon be cancelled without payment;
(b) all of the issued and outstanding Sulliden RSUs shall be deemed to have vested, and Sulliden shall allot and issue to each holder of Sulliden RSUs such number of Sulliden Shares as are due to such holder under the terms of the Sulliden RSU Plan (less any amounts withheld pursuant to the Plan of Arrangement) and thereafter the Sulliden RSU Plan will terminate and none of the former holders of Sulliden RSUs, the Parties or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the Sulliden RSU Plan;
(c) all of the issued and outstanding Sulliden DSUs shall be deemed to have vested, and the resignation of each holder of Sulliden DSUs of his or her position with Sulliden and the appointment of their successors shall be effective, and Sulliden shall allot and issue to each holder of Sulliden DSUs such number of Sulliden Shares as are due to settle the amount due to such holder under the terms of the Sulliden DSU Plan (less any amounts withheld pursuant to the Plan of Arrangement) and thereafter the Sulliden DSU Plan will terminate and none of the former holders of Sulliden DSUs, the Parties or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the Sulliden DSU Plan;
(d) the authorized share capital of Sulliden will be amended by redesignating the Sulliden Shares as the Class B Shares and the articles of Sulliden shall be deemed to be amended accordingly, and each certificate representing Sulliden Shares shall, as and from the time such redesignation is effective, represent Class B Shares;
(e) the authorized share capital of Sulliden will be amended by the creation of an unlimited number of Class A Convertible Preferred ShareShares, Class B Convertible Preferred Shareand the articles of Sulliden shall be deemed to be amended accordingly;
(f) the SpinCo Option Plan will come into force;
(g) the transactions contemplated by the SpinCo Conveyance Agreement shall become effective and pursuant thereto, Class C Convertible Preferred Share Sulliden shall assign and Company Common Share transfer to SpinCo and SpinCo shall accept the SpinCo Assets and SpinCo Liabilities, and as consideration for the SpinCo Assets, SpinCo shall issue to Sulliden that number of fully-paid and non-assessable SpinCo Shares such that immediately after the foregoing issuance Sulliden shall hold in aggregate (together with the SpinCo Shares held immediately prior to the foregoing issuance) that number of SpinCo Shares that is equal to 0.0147 multiplied by the number of Sulliden Shares that are issued and outstanding immediately prior to the Effective Time and after giving effect to the issuances in section 2.3 (b) and (c) above (adjusted as provided in Section 2.5 below) less the number of Sulliden Shares held by Dissenting Shareholders, all in accordance with the terms of the SpinCo Conveyance Agreement, and Sulliden shall be entered into the register of SpinCo Shares maintained by or on behalf of SpinCo;
(h) Rio Alto will lend (the "Loan") to Sulliden an amount of cash equal to the Loan Amount by way of a non-interest bearing demand promissory note. If Rio Alto has so elected in accordance with Section 2.10(b) of the Arrangement Agreement, Sulliden will subscribe and pay for and Rio Alto shall issue to Sulliden that number of fully-paid and non-assessable Rio Alto Shares (the "Rio Alto Funding Shares") equal to $10,000,000 at the Rio Alto Share Price;
(i) Sulliden will subscribe for and SpinCo shall issue to Sulliden that number of additional fully-paid and non-assessable SpinCo Shares that is equal to 0.0853 multiplied by the number of Sulliden Shares that are issued and outstanding immediately prior to the Effective Time and after giving effect to the issuances in Section 2.3 (b) and (c) above (adjusted as provided in Section 2.5 below) less the number of Sulliden Shares held by Dissenting Shareholders, in consideration for payment from Sulliden to SpinCo of (i) cash subscription proceeds equal to $25,000,000 using funds from the Loan or (ii) $15,000,000 in cash using funds from the Loan and the transfer to SpinCo of all of the Rio Alto Funding Shares;
(j) Each Sulliden Option will be exchanged for a Sulliden Class A Option and one-tenth (0.1) of a SpinCo Option (and when aggregated with the other similar SpinCo Options of a holder of such options resulting in a fraction, they shall be rounded down to the nearest whole number of SpinCo Options). The term to expiry, conditions to and manner of exercising, and all other terms and conditions of a Sulliden Class A Option or a SpinCo Option, will be the same as the Sulliden Option for which it is exchanged and any document evidencing a Sulliden Option shall thereafter evidence and be deemed to evidence such Sulliden Class A Option or SpinCo Option, as the case may be. It is intended that subsection 7(1.4) of Tax Act apply to such exchange of options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Sulliden Class A Option or a SpinCo Option, as the case may be, will be irrevocably transferred to Parent in increased such that the aggregate of the In-The-Money Amount of the Sulliden Class A Option and the In-The-MoneyAmount of the SpinCo Option immediately after the exchange for, in each case, that number does not exceed the In-The-Money Amount of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached heretoSulliden Option immediately before the exchange.
(bk) Upon Sulliden shall undertake a reorganization of capital within the transfer meaning of all Company Shares to Parentsection 86 of the Tax Act, and which reorganization shall occur in the following order:
(i) each holder outstanding Class B Share will be exchanged with Sulliden free and clear of all Liens for one (1) Class A Share and one-tenth (0.1) of a SpinCo Share, and such Class B Share shall thereupon be cancelled, and:
(A) the holders of such Company Class B Shares shall cease to be the holder holders thereof and to have any rights or privileges as holders of such Company Shares and Class B Shares;
(B) such holder’s name holders' names shall be removed from the applicable securities register of Company Shares;the Class B Shares maintained by or on behalf of Sulliden; and
(iiC) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and each Sulliden Shareholder shall be deemed to be the transferee and legal and beneficial owner holder of such Company the Class A Shares and will be entered SpinCo Shares (in each case, free and clear of any Liens) exchanged for the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, Class B Shares and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock Sulliden or SpinCo, as the case may be, as the registered holder thereof;
(vii) the stated capital of Sulliden for the outstanding Class A Shares will be an amount equal to the paid-up capital of Sulliden in respect of the Class B Shares, less the paid-up capital of Sulliden that is attributable to each Sulliden Share held by Dissenting Shareholders and described in paragraph 2.3(a) hereof, and less the Fair Market Value of the SpinCo Shares distributed on such exchange;
(l) each outstanding Class A Share (other than Class A Shares held by Rio Alto or any affiliate thereof) will, without any action further act or formality by or on behalf of a holder of Class A Shares, be irrevocably assigned and transferred by the part holder thereof to Rio Alto (free and clear of Parentall Liens) in exchange for 0.525 of a Rio Alto Share for each Class A Share held, the Company or and
(i) the holders of Company Options, except such Class A Shares shall cease to be the holders thereof and to have any rights as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (holders of such Class A Shares other than the right to receive 0.525 of a “Company Unexercised Option”) shall be cancelled Rio Alto Share per Class A Share in accordance with this Plan of Arrangement;
(ii) such holders' name shall be removed from the terms register of the Company Option Plan Class A Shares maintained by or on behalf of Sulliden; and
(iii) Rio Alto shall be deemed to be the transferee and the legal and beneficial holder of such Class A Shares (free and clear of all Liens) and shall be entered as the registered holder of such Class A Shares in the register of the Class A Shares maintained by or on behalf of Sulliden.
(m) each Sulliden Class A Option, in exchange shall be exchanged for such cancellationa fully-vested option (each, such holder shall receive an option a "Rio Alto Replacement Option") to purchase shares from Rio Alto 0.525 of Parent Common Stock Rio Alto Share (and when aggregated with substantially the same terms and conditions (including the terms and conditions other similar Rio Alto Replacement Options of any applicable stock option agreement or other document evidencing a holder of such Company Optionoptions resulting in a fraction of a Rio Alto Share, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will they shall be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share Rio Alto Shares). Such Rio Alto Replacement Option shall provide for an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised per Rio Alto Replacement Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (cent) equal to the exercise price per Class A Share that otherwise be payable to acquire a “Parent Class A Share pursuant to the Sulliden Class A Option it replaces. All terms and conditions of a Rio Alto Replacement Option”). Each Company Unexercised , including the term to expiry, conditions to and manner of exercising, will be the same as the Sulliden Class A Option for which it was exchanged, and shall be governed by the terms of the Sulliden Option Plan and any document evidencing a Sulliden Class A Option shall thereafter evidence and be vested deemed to evidence such Rio Alto Replacement Option, except that the term to expiry of any Rio Alto Replacement Option shall not be affected by a holder of Rio Alto Replacement Options not becoming, or ceasing to be, an employee, consultant, officer or director of Sulliden or Rio Alto, as the case may be. It is intended that subsection 7(1.4) of Tax Act apply to such exchange of options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Rio Alto Replacement Option will be increased such that the In-The-Money Amount of the Rio Alto Replacement Option immediately following after the Effective Time exchange does not exceed the In-The-Money Amount of the Sulliden Class A Option immediately before the exchange;
(n) each Class A Share held by Rio Alto will be transferred to Rio Alto Newco in consideration of the issue by Rio Alto Newco to Rio Alto of one common share of Rio Alto Newco for each Class A Share so transferred;
(o) the stated capital in respect of the Class A Shares will be reduced to $1.00 without any repayment of capital in respect thereof;
(p) Sulliden will file an election with the CRA to cease to be a public corporation for the purposes of the Tax Act; and
(q) Rio Alto NewCo and Sulliden shall amalgamate to form one corporate entity ("Amalco") with the same effect as if they had amalgamated under under Section 177 of the OBCA, such that:
(i) Rio Alto will receive on the amalgamation one Amalco common share in exchange for each Rio Alto Newco common share previously held, and all of the issued and outstanding Class A Shares will be cancelled without repayment of capital in respect thereof;
(ii) the stated capital of the Amalco common shares will be an amount equal to the same percentage "paid-up capital", as that term is defined in the Tax Act, attributable to all of the total number of issued and outstanding Rio Alto Newco common shares subject thereto as it was vested immediately prior to the Effective Time, except to Amalgamation;
(iii) the extent such Company Unexercised Option (either by its terms or by the terms name of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option Amalco shall be determined in such manner so as to comply to "Shahuindo Gold Limited";
(iv) the greatest extent possible with Subsection 7(1.4initial directors of Amalco shall be the directors of Rio Alto NewCo;
(v) the initial officers of Amalco shall be the Canadian Tax Act and the equivalent provisions under applicable provincial lawofficers of Rio Alto NewCo;
(vi) The Company Option Plan Amalco shall have a minimum of 3 directors and a maximum of 11 directors;
(vii) all of the property of each of Rio Alto NewCo and Sulliden continues to be the property of Amalco;
(viii) Amalco continues to be liable for the obligations of each of Rio Alto NewCo and Sulliden (other than any obligations of Rio Alto NewCo or Sulliden to the other);
(ix) any existing cause of action, claim or liability to prosecution is unaffected;
(x) a civil, criminal or administrative action or proceeding pending by or against Rio Alto NewCo or Sulliden may continue to be prosecuted by or against Amalco;
(xi) a conviction against, or ruling, order or judgment in favour of or against Rio Alto NewCo or Sulliden may be enforced by or against Amalco;
(xii) the articles of Rio Alto NewCo immediately before the Effective Time are deemed to be the articles of incorporation of Amalco, and the Certificate of Arrangement is deemed to be the certificate of incorporation of Amalco;
(xiii) the by-laws of Rio Alto NewCo immediately before the Effective Time are deemed to be the by-laws of Amalco;
(xiv) Amalco shall be cancelledauthorized to issue an unlimited number of common shares; and
(viixv) without any action on the part directors of Parent, Amalco may appoint one or more directors of Amalco but the Company or the holder total number of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as directors so appointed may not exceed one third of the Closing number of directors elected at the previous annual meeting of shareholders of Amalco, and any directors of Amalco appointed pursuant to the previous sentence shall be hold office for a term expiring not later than the close of no further force or effectthe next annual meeting of shareholders.
Appears in 1 contract
Arrangement. Commencing on the Effective Time, the The following transactions shall occur and shall be deemed to occur and be completed in the following order on the Effective Date without any further authorization, act or formality of or by formality, in each case effective as at five minute intervals starting at the Company, Parent or any other Person:Effective Time (unless stated otherwise):
(a) Each Class A Convertible Preferred notwithstanding the terms of the EMV Incentive Plan, at the Effective Time:
(A) each EMV DSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, shall unconditionally and immediately vest and shall be settled by EMV in exchange for one EMV Share, Class B Convertible Preferred subject to applicable withholdings; (B) each holder of an EMV DSU shall be entered in the register of EMV Shareholders maintained by or on behalf of EMV as the holder of the EMV Share issued therefor and such EMV Share shall be deemed to be issued to such holder of the EMV DSU as a fully paid share in the capital of EMV, provided that no certificate or book-entry statement shall be issued with respect to such EMV Share; (C) each EMV DSU shall be immediately cancelled and the holder of such EMV DSU shall cease to be the holder thereof and to have any right as a holder of an EMV DSU; and (D) the name of each holder of each EMV DSU shall be removed from the register of EMV DSUs maintained by or on behalf of EMV and all agreements relating to EMV DSUs shall be terminated and shall be of no further force and effect;
(A) each EMV PSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, shall unconditionally and immediately vest and shall be settled by EMV in exchange for one EMV Share, Class C Convertible Preferred subject to applicable withholdings; (B) each holder of an EMV PSU shall be entered in the register of EMV Shareholders maintained by or on behalf of EMV as the holder of the EMV Share issued therefor and Company Common such EMV Share shall be deemed to be issued to such holder of the EMV PSU as a fully paid share in the capital of EMV, provided that no certificate or book-entry statement shall be issued with respect to such EMV Share; (C) each EMV PSU shall be immediately cancelled and the holder of such EMV PSU shall cease to be the holder thereof and to have any right as a holder of an EMV PSU; and (D) the name of each holder of each EMV PSU shall be removed from the register of EMV PSUs maintained by or on behalf of EMV and all agreements relating to EMV PSUs shall be terminated and shall be of no further force and effect;
(A) each EMV RSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, shall unconditionally and immediately vest and shall be settled by EMV in exchange for one EMV Share, subject to applicable withholdings; (B) each holder of an EMV RSU shall be entered in the register of EMV Shareholders maintained by or on behalf of EMV as the holder of the EMV Share issued therefor and such EMV Share shall be deemed to be issued to such holder of the EMV RSU as a fully paid share in the capital of EMV, provided that no certificate or book-entry statement shall be issued with respect to such EMV Share; (C) each EMV RSU shall be immediately cancelled and the holder of such EMV RSU shall cease to be the holder thereof and to have any right as a holder of an EMV RSU; and (D) the name of each holder of each EMV RSU shall be removed from the register of EMV RSUs maintained by or on behalf of EMV and all agreements relating to EMV RSUs shall be terminated and shall be of no further force and effect;
(iv) (A) each EMV In-the-Money Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, shall unconditionally and immediately vest and become exercisable, and each holder of an EMV In-the-Money Option shall be deemed to have elected to assign and transfer each such EMV In-the-Money Option, without any further action by or on behalf of the holder of such EMV Option, to EMV for cancellation in exchange for such number of EMV Shares as is equal to the quotient obtained by dividing (1) the aggregate of the EMV In-the-Money Amount for all EMV In-the-Money Options held by such holder by (2) the EMV Share Closing VWAP, which quotient shall be rounded down to the nearest whole number, subject to applicable withholdings; (B) each holder of an EMV In-the-Money Option that receives one or more EMV Shares pursuant to this Section 3.01(a)(iv) shall be entered in the register of EMV Shareholders maintained by or on behalf of EMV as the holder of the EMV Share issued therefor and such EMV Share shall be deemed to be issued to such holder of the EMV In-the-Money Options as a fully paid share in the capital of EMV, provided that no certificate or book-entry statement shall be issued with respect to such EMV Share; (C) each EMV In-the-Money Option shall be immediately cancelled and the holder of such EMV In-the-Money Option shall cease to be the holder thereof and to have any right as a holder of an EMV In-the-Money Option; and (D) the name of each holder of each EMV In-the-Money Option shall be removed from the register of EMV Options maintained by or on behalf of EMV and all agreements relating to EMV In-the-Money Options shall be terminated and shall be of no further force and effect; and
(A) each EMV Out-of-the-Money Option issued and outstanding immediately prior to the Effective Time whether vested or unvested shall, without any further action by or on behalf of any holder of such EMV Out-of-the-Money Option, immediately be cancelled without any payment therefor; (B) any holder of such EMV Out-of-the-Money Option shall cease to be the holder thereof and to have any right as a holder of an EMV Out-of-the-Money Option; and (C) the name of each holder of each EMV Out-of-the-Money Option shall be removed from the register of EMV Options maintained by or on behalf of EMV and all agreements relating to EMV Out-of-the-Money Options shall be terminated and shall be of no further force and effect;
(b) each EMV Share held by a Dissenting Shareholder in respect of which the EMV Shareholder has validly exercised his, her or its Dissent Rights shall be deemed to be irrevocably transferred and assigned by such Dissenting Shareholder to Parent in exchange forXos (free and clear of all liens, in each case, that number charges and encumbrances of shares of Parent Common Stock as determined any nature whatsoever) in accordance with Section 4.01 and in consideration for a debt claim against Xos for the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
amount determined under Article 4 and (i) each the holder of such Company Shares thereof shall cease to be the holder of such Company EMV Share and to have any rights as a holder of EMV Shares other than the right to be paid fair value as set out in Article 4 and the name of such holderregistered holder shall be removed from the register of EMV Shareholders as of the Effective Time; (ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such EMV Share; (iii) Xos shall be deemed to be the transferee of such EMV Shares (free and clear of all liens, charges and encumbrances of any nature whatsoever); and (iv) Xos shall be entered in the register of EMV Shareholders maintained by or on behalf of EMV as the holders of any such EMV Shares; and
(c) each EMV Share (including EMV Shares issued pursuant to Sections 3.01(a)(i), 3.01(a)(ii), 3.01(a)(iii) and 3.01(a)(iv), but excluding any EMV Share transferred from a Dissenting Shareholder pursuant to Section 3.01(b)) shall be transferred by the EMV Shareholder, free and clear of all liens, charges and encumbrances of any nature whatsoever, to Xos and in consideration for such transfer, such EMV Shareholder shall be issued the Consideration and:
(i) such EMV Shareholder shall cease to be the holder of the transferred EMV Share and to have any right as a holder thereof, other than the right to be issued the Consideration by Xos in accordance with this Plan of Arrangement; (ii) such EMV Shareholder’s name shall be removed from the applicable securities register of Company Shares;
EMV Shareholders maintained by or on behalf of EMV; (iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to Xos shall be the transferee and legal and beneficial owner of such Company Shares EMV Share, free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iii) no fractional shares all liens, charges and encumbrances of Parent Common Stock shall be issued in connection with the Arrangement, any nature whatsoever; and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder Xos shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action EMV Shareholders maintained by or on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms behalf of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) EMV as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectsuch EMV Share.
Appears in 1 contract
Sources: Arrangement Agreement (Electrameccanica Vehicles Corp.)
Arrangement. Commencing on at the Effective Time, Time each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of or by formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Sharenotwithstanding the terms of the Long-Term Incentive Plan, Class B Convertible Preferred Shareeach DSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall, Class C Convertible Preferred Share without any further action by or on behalf of a holder of DSUs, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such DSU shall immediately be cancelled and (i) the holders of such DSUs shall cease to be the holders thereof and to have any rights as holders of such DSUs, other than the right to receive the consideration to which they are entitled under this Section 2.3(a); (ii) such holders’ names shall be removed from the register of the DSUs maintained by or on behalf of the Company; and (iii) all agreements relating to the DSUs (other than the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect;
(b) notwithstanding the terms of the Long-Term Incentive Plan, each RSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action by or on behalf of a holder of RSUs, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such RSU shall immediately be cancelled and (i) the holders of such RSUs shall cease to be the holders thereof and to have any rights as holders of such RSUs, other than the right to receive the consideration to which they are entitled under this Section 2.3(b); (ii) such holders’ names shall be removed from the register of the RSUs maintained by or on behalf of the Company; and (iii) all agreements relating to the RSUs (other than the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect;
(c) notwithstanding the terms of the Long-Term Incentive Plan, each PSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action by or on behalf of a holder of PSUs, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such PSU shall immediately be cancelled and (i) the holders of such PSUs shall cease to be the holders thereof and to have any rights as holders of such PSUs, other than the right to receive the consideration to which they are entitled under this Section 2.3(c); (ii) such holders’ names shall be removed from the register of the PSUs maintained by or on behalf of the Company; and (iii) all agreements relating to the PSUs (other than the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect;
(d) notwithstanding the terms of the Long-Term Incentive Plan, each RSR outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action by or on behalf of a holder of RSRs, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such RSR shall immediately be cancelled and (i) the holders of such RSRs shall cease to be the holders thereof and to have any rights as holders of such RSRs, other than the right to receive the consideration to which they are entitled under this Section 2.3(d); (ii) such holders’ names shall be removed from the register of the RSRs maintained by or on behalf of the Company; and (iii) all agreements relating to the RSRs (other than the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect;
(e) notwithstanding the terms of the Stock Option Plan or the Long-Term Incentive Plan, each Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall be deemed to be unconditionally vested and exercisable and such Option shall, without any further action by or on behalf of a holder of Options, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount by which the Consideration exceeds the exercise price of such Option, less applicable withholdings, and each such Option shall immediately be cancelled and, for greater certainty, where such amount is a negative, neither the Company nor the Purchaser shall be obligated to pay the holder of such Option any amount in respect of such Option and (i) the holders of such Options shall cease to be the holders thereof and to have any rights as holders of such Options, other than the right to receive the consideration to which they are entitled under this Section 2.3(e); (ii) such holders’ names shall be removed from the register of the Options maintained by or on behalf of the Company; and (iii) all agreements relating to the Options (other than the Stock Option Plan and the Long-Term Incentive Plan) shall be terminated and shall be of no further force and effect;
(f) each Warrant shall, without any further action by or on behalf of a holder of the Warrants, be deemed to be assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount by which the Consideration exceeds the exercise price of such Warrant, and each such Warrant shall immediately be cancelled and, for greater certainty, where such amount is a negative, neither the Company nor the Purchaser shall be obligated to pay the holder of such Warrant any amount in respect of such Warrant and (i) the holder of the Warrants shall cease to be the holder thereof and to have any rights as the holder of the Warrants, other than the right to receive the consideration to which they are entitled under this Section 2.3(f); (ii) such holder’s name shall be removed from the register of the Warrants maintained by or on behalf of the Company; and (iii) the certificate(s) representing the Warrants shall be cancelled;
(g) each of the Common Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and:
(i) such Dissenting Holders shall cease to be the holders of such Common Shares and to have any rights as holders of such Common Shares, other than the right to be paid fair value by the Purchaser for such Common Shares as set out in Section 3.1;
(ii) such Dissenting Holders’ names shall be removed as the holders of such Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Common Shares, free and clear of all Liens, and shall be entered in the register of Common Shares maintained by or on behalf of the Company; and
(h) each Common Share outstanding immediately prior to the Effective Time shall be (other than (A) Common Shares held by a Dissenting Holder who has validly exercised such holder’s Dissent Right; and (B) Common Shares owned by the Purchaser or its affiliates) shall, without any further action by or on behalf of a holder of Common Shares, be deemed to be irrevocably assigned and transferred by the holder thereof to Parent the Purchaser in exchange forfor the Consideration, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand:
(i) each holder the holders of such Company Common Shares shall cease to be the holder holders of such Company Common Shares and to have any rights as holders of such holder’s name Common Shares, other than the right to be paid the Consideration by the Purchaser in accordance with this Plan of Arrangement;
(ii) such holders’ names shall be removed from the applicable securities register of Company Shares;the Common Shares maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and the Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Shares Common Shares, free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangementall Liens, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent the Common Stock as the registered holder thereof;
(v) without any action Shares maintained by or on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms behalf of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectCompany.
Appears in 1 contract
Sources: Amending Agreement
Arrangement. Commencing on at the Effective Time, except as noted below, the following shall occur and shall be deemed to occur in the following order order, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company all Common Share outstanding immediately prior to the Effective Time Shares held by Dissenting Shareholders shall be and be deemed to be irrevocably have been transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer free and clear of all Company Shares Liens) to Parent:the Company; and
(i) each holder of such Company Shares Dissenting Shareholders shall cease to be the holder holders of such Company Common Shares and cease to have any rights as Shareholders other than the right to be paid the fair value for such holder’s Common Shares as set out in Article 4;
(ii) such Dissenting Shareholder shall cease to be a Shareholder, and the name of such Dissenting Shareholder shall be removed from the applicable securities register of Company Shares;holders of Common Shares maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company transferred Common Shares will vest in Parent and Parent will be and then be deemed to be redeemed and cancelled by the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofCompany;
(iiib) no fractional shares of Parent subject to Section 3.3, each outstanding Common Stock Share (other than those held by Dissenting Shareholders) shall be issued deemed to be assigned and transferred (free and clear of all Liens) to Teranga in connection with exchange for the Arrangement, Consideration;
(c) each Company Option which is outstanding and no certificates has not been duly exercised or scrip for any such fractional shares rolled over under the Teranga Option Plan prior to the Effective Date shall be issued. Any exchanged by the holder thereof for a fully vested option to purchase from Teranga (each a “Teranga Replacement Option”) the number of Company Teranga Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded down to the nearest whole share) equal to 0.60 multiplied by the number of Common Shares subject to the Company Option for which it was exchanged, at an exercise price per Teranga Share (rounded up to the nearest whole cent)) equal to the exercise price per Common Share specified in the Company Option for which it was exchanged, without interestdivided by 0.60. Such Teranga Replacement Options shall not expire as a result of the optionee ceasing to be employed or engaged as a consultant, determined by multiplying officer or director or otherwise in a service relationship with the Company, a subsidiary of the Company or any successor thereof, or as a result of termination of such fraction relationship by the closing price Company but such Teranga Replacement Options held by a director, officer or consultant of the Company who ceases to be a director, officer or consultant, as applicable, of the Company shall be deemed to have been amended to provide that such Teranga Replacement Option shall expire not later than the earlier of: (i) the original expiry date of the Company Option; and (ii) February 6, 2015. Such Teranga Replacement Options shall be deemed to be issued under the Teranga Stock Option Plan, as if originally granted thereunder. Except as provided above, all terms and conditions of a share Teranga Replacement Option, including the conditions to and manner of Parent Common Stock on exercising, will be the Nasdaq Market on same as the last trading day prior Company Option for which it was exchanged, and shall be governed by the terms of the applicable Company Option Plan and any certificate or option agreement previously evidencing the Company Option shall thereafter evidence and be deemed to the Closing Dateevidence such Teranga Option;
(ivd) with respect to each share of Parent Common the replacement stock options that were issued by Teranga under the Roll-over Stock issued to a former holder of Company Shares, the name of such holder Option Agreements shall be entered in deemed to have been issued under the register of holders of Parent Common Teranga Stock as the registered holder thereof;
(v) without any action on the part of ParentOption Plan, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Roll-over Stock Option Plan Agreements, without any further action of the parties to the Roll-over Stock Option Agreements or the Company;
(e) Oromin and NewCo will merge and continue as one company (“Amalco”) with the same effect as if they had amalgamated under Section 273 of the BCBCA and with effect under Section 282 of the BCBCA; and
(f) from and after the Effective Date, at the time of the step contemplated in exchange for such cancellation, such holder shall receive an option to purchase Section 2.3(e):
(i) the shares of Parent NewCo shall be cancelled on the amalgamation without any repayment of capital in respect of such shares;
(ii) the stated capital of the Amalco common shares will be an amount equal to the “paid-up capital”, as that term is defined in the Tax Act, attributable to the Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect Shares immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledAmalgamation; and
(viiiii) without any action on the part Amalco shall have, as its notice of Parentarticles and articles, the Company or the holder notice of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as articles and articles of the Closing and shall be of no further force or effectCompany.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on At the Effective Time, unless otherwise specifically provided in this Section 3.02, the following events or transactions shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each the Purchaser shall subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A) the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty for the purposes of determining variable (A) in relation to the quotient under this Section 3.02(a), the fair market value of the Maximum Purchaser Shares and the Maximum Cash Consideration will be no less than the fair market value of the Class A Convertible Preferred ShareShares immediately prior to the acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k), Class B Convertible Preferred Shareand in connection with such share subscription:
(i) the Purchaser shall be deemed to have directed the Depositary to hold, Class C Convertible Preferred and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary in accordance with Section 3.05(a)(i) (such cash and Purchaser Shares, collectively, the “Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction of the subscription price payable by the Purchaser for such Acquireco Common Shares; and
(ii) Acquireco shall be deemed to have issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser, and the stated capital account maintained by Acquireco in respect of the Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued pursuant to this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration;
(b) notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each In-the-Money Option issued and Company Common Share outstanding immediately prior to the Effective Time shall be and shall, without any further action by or on behalf of any holder of such In-the-Money Option, be deemed to be irrevocably fully vested and shall be transferred and disposed by the holder thereof to Parent the Company (free and clear of all Encumbrances) and cancelled in exchange forfor the Option Consideration, in each caseand the holder of such In-the-Money Option shall become the holder of the Company Shares comprising such Option Consideration and the central securities register of the Company shall be revised accordingly, that number but the holder of shares of Parent Common Stock as determined in accordance with such Option Consideration shall not be entitled to receive a share certificate or other document representing the formula set out on Exhibit A attached hereto.Option Consideration;
(bii) Upon each Out-of-the-Money Option issued and outstanding immediately prior to the transfer Effective Time shall, without any further action by or on behalf of all any holder of such Out-of-the-Money Option, be cancelled without any payment therefor;
(iii) with respect to each Company Shares to ParentOption:
(iA) each the holder of such Company Shares thereof shall cease to be the holder of such Company Shares Option, and shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company Options, and
(C) all option agreements, Award Agreements, grants and similar instruments relating thereto shall be cancelled;
(c) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such Company RSU, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the applicable RSU Consideration, and the holder of such Company RSU shall become the holder of the Company Shares comprising such RSU Consideration and the central securities register of the Company shall be revised accordingly, but the holder of such RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration;
(ii) with respect to each Company RSU:
(A) the holder thereof shall cease to be the holder of such Company RSU, and shall cease to have any rights as a holder in respect of such Company RSU under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company RSUs, and
(C) all Award Agreements, grants and similar instruments relating thereto will be cancelled;
(d) the Company Option Plans shall be terminated;
(e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares;
(iif) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e), the stated capital account maintained by the Company in respect of the Company Shares shall be reduced, in respect of the Company Shares cancelled pursuant to Section 3.02(e), by an amount equal to the product obtained when (A) the stated capital of all the issued and outstanding Company Shares immediately prior to the step in Section 3.02(e), is multiplied by (B) a fraction, the numerator of which is the number of Company Shares surrendered and cancelled pursuant to Section 3.02(e), and the denominator of which is the number of issued and outstanding Company Shares immediately prior to the step in Section 3.02(e);
(g) the Company shall transfer all of its entire legal and beneficial right, title and interest in and to such Company Shares will vest the Spinco Property to Spinco in Parent and Parent will be and be deemed consideration for the issuance by Spinco to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as of that number of fully paid and non-assessable Spinco Shares (the sole shareholder thereof;
(iii“Distribution Spinco Shares”) no fractional shares of Parent Common Stock shall be issued in connection with equal to the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder number of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day issued and outstanding immediately prior to the Closing Date;
transfer in this Section 3.02(g) (iv) with for the avoidance of doubt, excluding any Company Shares in respect to each share of Parent Common Stock issued to a former holder of Company Shareswhich Dissenting Shareholders have exercised Dissent Rights), the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled all in accordance with the terms of the Company Option Plan and, Spinco Contribution Agreement;
(h) in exchange for such cancellation, such holder shall receive an option to purchase shares the course of Parent Common Stock with substantially a reorganization of the same terms Company’s authorized and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that issued share capital:
(i) the notice of articles and articles of the Company shall be amended to create a new class of shares without par value, of which an unlimited number may be issued and which shall be designated the "Class A Shares" (the “Class A Shares”), which shall have the special rights and restrictions set forth in Schedule “A” to this Plan of Arrangement;
(ii) each Company Unexercised Option will be exercisable Share issued and outstanding immediately before the reorganization of the Company’s share capital pursuant to this Section 3.02(h) (or will become exercisable including, without limitation, the Company Shares issued pursuant to former holders of In-the-Money Options and Company RSUs pursuant to Section 3.02(b) and Section 3.02(c), respectively, but excluding any Company Shares surrendered and cancelled in accordance with its termsSection 3.02(e)) solely shall be exchanged with the Company, free and clear of any Encumbrances, for a number one Class A Share and one Distribution Spinco Share, and upon such exchange:
(A) each such exchanged Company Share shall be cancelled, and the holders of whole shares such exchanged Company Shares shall be removed from the Company’s register of Parent Common Stock equal to the product of (x) the number holders of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawShares;
(viB) The each holder of such exchanged Company Option Plan Shares shall be cancelledentered in the Company’s register of holders of Class A Shares in respect of the Class A Shares issued to such holder;
(C) the Company shall be removed from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares; and
(viiD) without any action on the part of Parent, the Company or the each holder of that certain warrant to purchase such exchanged Company Common Shares dated as shall be entered in Spinco’s register of October 5, 2007 issued holders of Spinco Shares in respect of the Distribution Spinco Shares exchanged with such holder by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.Company;
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, unless otherwise specifically provided in this Section 3.02, the following events or transactions shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each the Purchaser shall subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A) the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty for the purposes of determining variable (A) in relation to the quotient under this Section 3.02(a), the fair market value of the Maximum Purchaser Shares and the Maximum Cash Consideration will be no less than the fair market value of the Class A Convertible Preferred Shares immediately prior to the acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k), and in connection with such share subscription:
(i) the Purchaser shall be deemed to have directed the Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary in accordance with Section 3.05(a)(i) (such cash and Purchaser Shares, collectively, the “Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction of the subscription price payable by the Purchaser for such Acquireco Common Shares; and
(ii) Acquireco shall be deemed to have issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser, and the stated capital account maintained by Acquireco in respect of the Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued pursuant to this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration;
(b) notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each In-the-Money Option issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such In-the-Money Option, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the Option Consideration, and the holder of such In-the-Money Option shall become the holder of the Company Shares comprising such Option Consideration and the central securities register of the Company shall be revised accordingly, but the holder of such Option Consideration shall not be entitled to receive a share certificate or other document representing the Option Consideration;
(ii) each Out-of-the-Money Option issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such Out-of-the-Money Option, be cancelled without any payment therefor;
(iii) with respect to each Company Option:
(A) the holder thereof shall cease to be the holder of such Company Option, and shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company Options, and
(C) all option agreements, Award Agreements, grants and similar instruments relating thereto shall be cancelled;
(c) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such Company RSU, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the applicable RSU Consideration, and the holder of such Company RSU shall become the holder of the Company Shares comprising such RSU Consideration and the central securities register of the Company shall be revised accordingly, but the holder of such RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration;
(ii) with respect to each Company RSU:
(A) the holder thereof shall cease to be the holder of such Company RSU, and shall cease to have any rights as a holder in respect of such Company RSU under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company RSUs, and
(C) all Award Agreements, grants and similar instruments relating thereto will be cancelled;
(d) the Company Option Plans shall be terminated;
(e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares;
(f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e), the stated capital account maintained by the Company in respect of the Company Shares shall be reduced, in respect of the Company Shares cancelled pursuant to Section 3.02(e), by an amount equal to the product obtained when (A) the stated capital of all the issued and outstanding Company Shares immediately prior to the step in Section 3.02(e), is multiplied by (B) a fraction, the numerator of which is the number of Company Shares surrendered and cancelled pursuant to Section 3.02(e), and the denominator of which is the number of issued and outstanding Company Shares immediately prior to the step in Section 3.02(e);
(g) the Company shall transfer all of its entire legal and beneficial right, title and interest in and to the Spinco Property to Spinco in consideration for the issuance by Spinco to the Company of that number of fully paid and non-assessable Spinco Shares (the “Distribution Spinco Shares”) equal to the number of Company Shares issued and outstanding immediately prior to the transfer in this Section 3.02(g) (for the avoidance of doubt, excluding any Company Shares in respect of which Dissenting Shareholders have exercised Dissent Rights), all in accordance with the terms of the Spinco Contribution Agreement;
(h) in the course of a reorganization of the Company’s authorized and issued share capital:
(i) the notice of articles and articles of the Company shall be amended to create a new class of shares without par value, of which an unlimited number may be issued and which shall be designated the "Class A Shares" (the “Class A Shares”), which shall have the special rights and restrictions set forth in Schedule “A” to this Plan of Arrangement;
(ii) each Company Share issued and outstanding immediately before the reorganization of the Company’s share capital pursuant to this Section 3.02(h) (including, without limitation, the Company Shares issued pursuant to former holders of In-the-Money Options and Company RSUs pursuant to Section 3.02(b) and Section 3.02(c), respectively, but excluding any Company Shares surrendered and cancelled in accordance with Section 3.02(e)) shall be exchanged with the Company, free and clear of any Encumbrances, for one Class A Share and one Distribution Spinco Share, and upon such exchange:
(A) each such exchanged Company Share shall be cancelled, and the holders of such exchanged Company Shares shall be removed from the Company’s register of holders of Company Shares;
(B) each holder of such exchanged Company Shares shall be entered in the Company’s register of holders of Class B Convertible Preferred ShareA Shares in respect of the Class A Shares issued to such holder;
(C) the Company shall be removed from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares; and
(D) each holder of such exchanged Company Shares shall be entered in Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares exchanged with such holder by the Company;
(iii) concurrently with the exchange in Section 3.02(h)(ii), the stated capital account in respect of the Company Shares shall be reduced by an amount equal to the stated capital of the Company Shares immediately prior to the reorganization in Section 3.02(h), and there shall be added to the stated capital account maintained by the Company in respect of the Class C Convertible Preferred A Shares, in respect of the Class A Shares issued pursuant to Section 3.02(h)(ii), the amount by which (A) the amount by which the stated capital account of the Company Shares is reduced pursuant to this Section 3.02(h)(iii), exceeds (B) the fair market value of the Distribution Spinco Shares transferred to the former holders of Company Shares pursuant to Section 3.02(h)(ii);
(i) the Initial Spinco Share held by the Company shall be cancelled without any repayment thereon, and the Company Common shall be removed from the Spinco register of holders of Spinco Shares;
(j) all of the issued and outstanding Spinco Shares shall be consolidated (the “Spinco Share Consolidation”) on the basis of one post-consolidation Spinco Share for each eight (8) pre-consolidation Spinco Shares held by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such Spinco Share Consolidation shall be cancelled without payment or compensation therefor, and upon such Spinco Share Consolidation the register of holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation;
(k) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who:
(i) duly and validly completes and delivers a Letter of Transmittal in accordance with Section 3.03 and Section 3.04 electing to receive the Combination Consideration in respect of all of such Participating Former Securityholder’s Company Shares;
(ii) has not completed and delivered a Letter of Transmittal by the Election Deadline or who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or
(iii) exercises Dissent Rights and is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange:
(iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares,
(v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances; and
(vi) each such Participating Former Securityholder shall, subject to the provisions of Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k);
(l) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers a Letter of Transmittal in accordance with Section 3.03 and Section 3.04 electing to receive either the Cash Consideration or the Purchaser Share Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for:
(i) in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m); and
(ii) in the case of a Participating Former Securityholder validly electing to receive the Purchaser Share Consideration, the Purchaser Share Consideration, subject to the provisions of Section 3.02(n), and upon such exchange:
(iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares,
(iv) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the sole legal and beneficial owner of such Class A Shares, free of all Encumbrances; and
(v) each such Participating Former Securityholder shall, subject to the provisions of Section 3.02(m) or Section 3.02(n), as applicable, and Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the Purchaser Shares, if any, payable to such Participating Former Securityholder;
(m) in the event that (A) the sum of (I) the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Cash, exceeds (B) the Maximum Cash Consideration, each Participating Former Securityholder who validly elects to receive the Cash Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall, notwithstanding Section 3.02(l)(i):
(i) only be entitled to receive the Cash Consideration for that portion of their Class A Shares equal to a fraction, rounded to six decimal places, the numerator of which is the Maximum Cash Consideration minus the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k), and the denominator of which is the Aggregate Elected Cash; and (ii) be entitled to receive the Purchaser Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in such remaining portion);
(n) in the event that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Share Consideration, each Participating Former Securityholder who validly elects to receive the Purchaser Share Consideration shall, notwithstanding Section 3.02(l)(ii):
(i) only be entitled to receive the Purchaser Share Consideration for that portion of their Class A Shares equal to a fraction, rounded to six decimal places, the numerator of which is the Maximum Purchaser Share Consideration minus the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k), and the denominator of which is the Aggregate Elected Purchaser Shares; and
(ii) be entitled to receive the Cash Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, any fractional Class A Share included in such remaining portion);
(o) the resignations of the Existing Company Directors, and the appointment of the New Company Directors, shall be deemed to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l);
(p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent cancelled in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with for a cash payment by the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock DSU equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.C
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by formality, in each case, effective at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time Rights Plan shall be terminated;
(b) each outstanding Option, SAR and SPAU (whether vested or unvested), notwithstanding the terms of the applicable Company Stock Plan, shall be deemed to be irrevocably transferred to Parent in exchange forunconditionally vested and exercisable, in each caseand such Option, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to ParentSAR or SPAU:
(i) shall, without any further action by or on behalf of the holder thereof, be transferred by such holder to the Company in exchange for a cash payment from the Company equal to the amount (if any) by which the Purchase Price exceeds the exercise price thereof, less applicable withholdings; and
(ii) shall immediately be cancelled and all agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the consideration to which such holder is entitled pursuant to this Section 2.03(b) at the time and in the manner specified in Article IV; and
(c) each holder outstanding PSU and DSU will be cancelled by the Company in exchange for a cash payment by the Company in the amount of such Company Shares shall cease the Purchase Price per PSU or DSU, as applicable, less applicable withholdings;
(d) each Common Share outstanding at the Effective Time other than a Common Share held by (i) a Dissenting Holder who is ultimately entitled to be paid the holder fair value of the Common Shares held by such Company Dissenting Holder, or (ii) Parent, Acquisition Sub or any Affiliate thereof (which shall not be exchanged under the Arrangement and shall remain outstanding as a Common Share held by Parent, Acquisition Sub or any Affiliate thereof), shall be transferred to Acquisition Sub in exchange for the Purchase Price per Common Share in cash;
(e) the names of the holders of the Common Shares and such holder’s name transferred to Acquisition Sub shall be removed from the applicable securities register registers of Company Shares;
(ii) legal holders of Common Shares and beneficial title to such Company Acquisition Sub shall be recorded as the registered holder of the Common Shares will vest in Parent so acquired and Parent will be and shall be deemed to be the transferee and legal and beneficial owner thereof free and clear of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofany liens or encumbrances;
(iiif) no fractional shares of Parent Common Stock the Company shall be issued pay any short-term incentive compensation payable under the 2006 Incentive Plan in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, change in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledcontrol; and
(viig) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Stock Plans shall be terminated as of the Closing and shall be of no further force or effectterminated.
Appears in 1 contract
Sources: Arrangement Agreement (Novelis Inc.)
Arrangement. Commencing on 3.1 The Arrangement
a) At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Person:
(ai) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share all of the Options and Company Common Share Warrants granted and outstanding immediately prior to the Effective Time shall will be cancelled (including Dissenting Options and Dissenting Warrants subject to the right of Dissenting Optionholders and Dissenting Warrantholders to be paid fair market value for the Dissenting Warrants and Dissenting Options);
ii) the Stock Option Plan will be cancelled;
b) Immediately after the steps in Section 3.1(a) occur:
i) all Common Shares outstanding immediately prior to the Effective Time (including Dissenting Shares and any Common Shares issued pursuant to the exercise of any Option or Warrant duly exercised prior to the Effective Time in accordance with the provisions of the Stock Option Plan and the option agreement evidencing any such Option and the warrant certificate evidencing any such Warrant), will be and be deemed to be irrevocably transferred by the Common Shareholders to Parent Acquisitionco (free and clear of any Liens) in exchange forfor a cash payment equal to (A) the Purchase Price for each Common Share other than Dissenting Shares, in each case, that number of shares of Parent Common Stock (B) the fair value as determined in accordance with the formula set out on Exhibit A attached hereto.in Section 4.1(a) for each Dissenting Share to which Section 4.1(a) applies, and (C) in respect of any Common Shareholder who exercises Dissent Rights and who is ultimately not entitled to be paid fair value for the Common Shares in respect of which they have exercised Dissent Rights, the Purchase Price for each such Common Share; and
(bii) Upon the transfer of all Company Shares with respect to Parenteach Common Share:
(iA) each the holder of such Company Shares shall thereof will cease to be the holder of such Company Shares and such Common Share;
(B) the holder’s 's name shall will be removed from the applicable central securities register of Company with respect to such Common Shares;; and
(iiC) legal and beneficial title to such Company Shares Common Share will vest in Parent Acquisitionco and Parent Acquisitionco will be and be deemed to be the transferee and legal and beneficial owner of such Company all Common Shares (free and clear of any Liens) and will be entered in the applicable central securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with holder thereof and the Arrangement, Ruiner holder and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu beneficial owner of such fraction of Common Share will cease to have any rights as a share, be paid shareholder in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectShare.
Appears in 1 contract
Sources: Arrangement Agreement (Pacific Asia China Energy Inc.)
Arrangement. Commencing on At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further authorization, act or formality required on the part of or by any Person, in each case effective as at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach Liquid Share (other than any Liquid Shares held by LBIX and any Liquid Shares in respect of which any Liquid Shareholder has validly exercised his, Class B Convertible Preferred Shareher or its Dissent Right) shall be deemed to be transferred to LBIX (free and clear of any Encumbrances) in exchange for the Consideration, Class C Convertible Preferred subject to Article 4 hereof;
(b) each Liquid Share in respect of which any Liquid Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to LBIX (free and clear of any Encumbrances) in accordance with Article 4 hereof;
(c) with respect to each Liquid Share transferred and assigned in accordance with Section 3.1(a) or Section 3.1(b) hereto:
(i) the registered holder thereof shall cease to be the registered holder of such Liquid Share and Company Common Share the name of such registered holder shall be removed from the register of Liquid Shareholders as of the Effective Time;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Liquid Shares in accordance with Section 3.1(a) or Section 3.1(b) hereto, as applicable; and
(iii) LBIX will be the holder of all of the outstanding Liquid Shares and the register of Liquid Shareholders shall be revised accordingly;
(d) in accordance with the certificates governing the terms and conditions of the Liquid Warrants, each holder of a Liquid Warrant outstanding immediately prior to the Effective Time shall be entitled to receive (and be deemed to be irrevocably transferred to Parent in exchange forsuch holder shall accept), in each case, that number upon the exercise of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shallLiquid Warrants, in lieu of each Liquid Share to which such fraction of a shareholder was theretofore entitled, be paid in cash upon such exercise and for the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Sharessame aggregate consideration payable therefor, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock LBIX Shares equal to the product of of: (xi) the number of Company Common Liquid Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior subject to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Liquid Warrant immediately prior to the Effective Time, except ; and (ii) 0.5741. Each liquid Warrant shall continue to the extent such Company Unexercised Option (either be governed by its terms or by and be subject to the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and certificate governing the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledLiquid Warrant; and
(viie) without any action the exchanges, cancellations and transactions provided for in this Section 3.1 will be deemed to occur on the part of ParentEffective Date, notwithstanding certain procedures related thereto may not be completed until after the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order as set out below without any further authorization, act or formality of or by formality, in each case effective as at two minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each each of the Common Shares or Class A Convertible Preferred ShareCompressed Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred, without any further act or formality by or on behalf of any Dissenting Holder, to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and:
(i) such Dissenting Holder shall cease to be the holder of such Common Shares or Class B Convertible Preferred ShareA Compressed Shares, as the case may be, and to have any rights as a Company Shareholder other than the right to be paid fair value for such Common Shares or Class C Convertible Preferred A Compressed Shares, as the case may be, as set out in Section 3.1;
(ii) such Dissenting Holder's name shall be removed as the holder of Common Shares or Class A Compressed Shares, as the case may be, from the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Common Shares or Class A Compressed Shares, as the case may be, free and clear of all Liens (other than the right to be paid fair value for such Common Shares or Class A Compressed Shares, as the case may be, as set out in Section 3.1), and shall be entered in the applicable register of Company Shareholders maintained by or on behalf of the Company; and
(b) each Class A Compressed Share outstanding immediately prior to the Effective Time (other than Class A Compressed Share held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) and any Class A Compressed Share held by the Purchaser or any affiliates thereof) shall, without any further act or formality by or on behalf of any Company Compressed Shareholder, be deemed to be converted into 100 Common Shares, and
(i) each holder of such Class A Compressed Shares shall cease to be the holder thereof and to have any rights as a Company Compressed Shareholder;
(ii) the name of each such holder shall be removed from the register of the Company Compressed Shareholders maintained by or on behalf of the Company; and
(iii) each such former Company Compressed Shareholder shall be deemed to be the holder of such Common Shares and shall be entered in the register of the Company Common Shareholders maintained by or on behalf of the Company.
(c) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Share Unit Plan or applicable Law), each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further act or formality by or on behalf of any Company RSU Holder, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Liens) and cancelled in exchange for the applicable RSU Consideration, and
(i) each holder of such Company RSU shall cease to be the holder thereof and to have any rights as a Company RSU Holder;
(ii) the name of each such holder shall be removed from the register of the Company RSU Holders maintained by or on behalf of the Company;
(iii) each such former holder of such Company RSU shall be deemed to be the holder of the Common Shares comprising such RSU Consideration and shall be entered in the register of the Company Common Shareholders maintained by or on behalf of the Company;
(iv) all Award Agreements, grants and similar instruments relating thereto will be cancelled; and
(v) the Share Unit Plan shall be cancelled;
(d) each Common Share outstanding immediately prior to the Effective Time shall be (other than Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(a) and any Common Shares held by the Purchaser or any affiliates thereof) and each Common Share issued to former Company Compressed Shareholders and former Company RSU Holders under Sections 2.3(b) and 2.3(c) shall, without any further action by or on behalf of any Company Common Shareholder, be deemed to be irrevocably assigned and transferred by the holder thereof to Parent the Purchaser in exchange forfor the Consideration, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:and
(i) each holder of such Company Common Shares shall cease to be the holder thereof and to have any rights as a Company Common Shareholder other than the right to be paid the Consideration per Common Share in accordance with this Plan of Arrangement;
(ii) the name of each such Company Shares and such holder’s name holder shall be removed from the applicable securities register of the Company Shares;Common Shareholders maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and the Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Common Shares free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, all Liens and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders the Company Common Shareholders maintained by or on behalf of Parent Common Stock as the registered holder thereof;Company.
(ve) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to at the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a Replacement Option to acquire such number of whole shares of Parent Common Stock Purchaser Shares as is equal to the product of to: (xA) the that number of Company Common Shares that would be were issuable upon exercise of the such Company Unexercised Option immediately prior to the Effective Time Time, multiplied by (yB) the Option Exchange Ratio0.8428, rounded down to the nearest whole number of shares of Parent Common StockPurchaser Shares, and (ii) the per share at an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Purchaser Share equal to the quotient equal to greater of (xi) the per share quotient determined by dividing: (X) the exercise price for per Common Share at which such Company Unexercised Option was exercisable immediately prior to the Effective Time divided Time, by (yY) the Option Exchange Ratio0.8428, rounded up to the nearest whole cent cent, and (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following ii) such minimum amount that meets the Effective Time as to the same percentage requirements of paragraph 7(1.4)(c) of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereofTax Act. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the All terms and conditions of exercise a Replacement Option, including the term to expiry, vesting, conditions to and manner of such exercising, shall be the same as the Company Unexercised Option for which it was exchanged, and any certificate or option agreement previously evidencing the Company Option shall thereafter evidence and be determined in deemed to evidence such manner so as Replacement Option.
(f) Without any further act or formality by or on behalf of 180 Smoke, the 180 Smoke Share Entitlement shall be deemed to comply be an entitlement to receive 0.8428 of a Purchaser Share for each Common Share that would be issued under the greatest extent possible with Subsection 7(1.4180 Smoke Share Entitlement and the 180 Smoke Purchase Agreement shall be deemed to be amended accordingly.
(g) Without any further act or formality by or on behalf of Pacific Remedy, the Pacific Remedy Share Entitlement shall be deemed to be an entitlement to receive 0.8428 of a Purchaser Share for each Common Share that would be issued under the Pacific Remedy Share Entitlement and the Pacific Binding LOI shall be deemed to be amended accordingly.
(h) Without any further act or formality by or on behalf of shareholder of the Canadian Tax Act RPE Exchangeable Shares, the RPE Share Entitlement shall be deemed to be an entitlement to receive 84.28 Purchaser Shares for each Class A Compressed share that would be issued under the RPE Share Entitlement and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan RPE Support Agreement, RPE Exchange Agreement and the terms of the RPE Exchangeable Shares shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant deemed to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectamended accordingly.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur occur, except to the extent otherwise indicated, in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred ShareNotwithstanding any vesting or exercise provisions to which an ICC Plan Option might otherwise be subject (whether by contract, Class B Convertible Preferred Sharethe terms and conditions of any Award Agreement or grant, Class C Convertible Preferred Share the terms and Company Common Share conditions of the ICC Stock Option Plan or applicable law):
(i) each In-the-Money Option issued and outstanding immediately prior to the Effective Time shall be and shall, without any further action by or on behalf of any holder of such In-the-Money Option, be deemed to be irrevocably fully vested and shall be transferred and disposed by the holder thereof to Parent ICC (free and clear of all Encumbrances) and cancelled in exchange forfor the Option Consideration, in each caseand the holder of such In-the-Money Option shall become the holder of the ICC Shares comprising such Option Consideration and the central securities register of ICC shall be revised accordingly, that number but the holder of shares of Parent Common Stock as determined in accordance with such Option Consideration shall not be entitled to receive a share certificate or other document representing the formula set out on Exhibit A attached hereto.Option Consideration;
(bii) Upon each Out-of-the-Money Option issued and outstanding immediately prior to the transfer Effective Time shall, without any further action by or on behalf of all Company Shares any holder of such Out-of-the-Money Option, be cancelled without any payment therefor;
(iii) with respect to Parenteach ICC Plan Option:
(iA) each the holder of such Company Shares thereof shall cease to be the holder of such Company Shares ICC Plan Option, and shall cease to have any rights as a holder in respect of such ICC Plan Option under the ICC Stock Option Plan;
(B) such holder’s name shall be removed from the applicable securities register of Company SharesICC Plan Options, and
(C) all option agreements, Award Agreements, grants and similar instruments relating thereto shall be cancelled;
(b) Each ICC Share held by a Dissenting ICC Shareholder shall, without any further action or formality by or on behalf of such Dissenting ICC Shareholder, be deemed to have been irrevocably transferred and assigned to Aurora (free and clear of all Encumbrances) and;
(i) such Dissenting ICC Shareholder shall cease to be the holder of such ICC Shares so transferred and to have any rights as holder of such ICC Shares other than the right to be paid fair value for such ICC Shares by Aurora as set out in Section 3.1;
(ii) such Dissenting ICC Shareholder's name shall be removed as the holder of such ICC Shares from the central securities register of holders of ICC Shares maintained by or on behalf of ICC; and
(iii) Aurora shall become the sole legal and beneficial title holder of such ICC Shares so transferred (free and clear of all Encumbrances) and shall be entered in the central securities register of holders of ICC Shares maintained by or on behalf of ICC; and
(c) Concurrently with the step described in Section 2.3(b), each ICC Share (other than those ICC Shares held by Dissenting ICC Shareholders but including ICC Shares issued to such Company Shares will vest in Parent and Parent will be and former holders of In-the-Money Options pursuant to Section 2.3(a)) shall, without any further action by or on behalf of the holder, be deemed to be assigned and irrevocably transferred by the transferee holder thereof to Aurora (free and legal clear of all Encumbrances) and beneficial owner the holder thereof shall be entitled to receive from Aurora the Share Consideration for such ICC Share and upon the transfer of each such ICC Share from such holder to Aurora pursuant to this Section 2.3(c);
(i) each holder of such Company ICC Shares shall cease to be the holder of the ICC Shares so transferred and will cease to have any rights as a ICC Shareholder other than the right to be entered paid the Share Consideration for such ICC Shares in accordance with this Plan of Arrangement;
(ii) the applicable securities name of each such holder of ICC Shares shall be removed from the register of the Company as the sole shareholder thereof;ICC Shares maintained by or on behalf of ICC; and
(iii) no fractional shares of Parent Common Stock Aurora shall be issued in connection with deemed the Arrangement, sole legal and no certificates or scrip for any such fractional shares shall be issued. Any beneficial holder of Company such ICC Shares who would otherwise be entitled to receive a fraction so transferred (free and clear of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holderEncumbrances) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder and shall be entered in the register of holders the ICC Shares maintained by or on behalf of Parent Common Stock as the registered ICC. Each holder thereof;
(v) without any action on the part of Parenteach ICC Share, the Company or the holders of Company Optionswith respect to each step set out above applicable to such holder, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such ICC Share in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectstep.
Appears in 1 contract
Arrangement. Commencing on On and after the Effective TimeDate and at the times provided, the following events shall occur and shall be deemed to occur consecutively in the following order set out in this Section 2.3 without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to At the Effective Time Time, each INSINC Shareholder that has not duly completed, executed and delivered a Participation Notice that has been accepted by INSINC shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.a Non-Participating INSINC Shareholder;
(b) Upon At the transfer Effective Time, INSINC shall pay $********* (“Fee”) to Alexander Capital Group Inc. and shall pay the amount set forth in the Costs Certificate (the “Advisor Costs”) to the advisors specified therein;
(c) At five minutes following the Effective Time, the authorized capital of all Company INSINC shall be amended to create and authorize an unlimited number of S1 Preferred Shares and S2 Preferred Shares;
(d) At ten minutes following the Effective Time,
(i) each INSINC Share held by a Non-Participating INSINC Shareholder shall be transferred by such Non-Participating INSINC Shareholder to ParentINSINC in exchange for one (1) S1 Preferred Share, on a one-for-one basis. which S1 Preferred Shares shall be issued to such Non-Participating INSINC Shareholder as fully paid and non-assessable shares free from any encumbrances; and
(ii) each INSINC Share transferred in paragraph (d)(i) shall be cancelled;
(e) At fifteen minutes following the Effective Time,
(i) INSINC shall declare a dividend of $1,480,000 on its issued and outstanding INSINC Shares.
(ii) such dividend shall be paid by the issuance to Participating INSINC Shareholders on a pro-rata basis of 1,480,000 S2 Preferred Shares having an aggregate redemption amount equal to the amount of the dividend referred to in paragraph (e)(i); and
(iii) INSINC shall add the full amount of the dividend to the stated capital account maintained for the S2 Preferred Shares;
(f) INSINC is authorized to make an election, before or after the Effective Date, under subsection 83(2) of the Tax Act in respect of the full amount of the dividend paid pursuant to paragraph (e);
(g) At five minutes following the D2 Effective Time, a portion of the S1 Preferred Shares held by each Non-Participating INSINC Shareholder, equal to Percentage 1 of such holder’s S1 Preferred Shares, shall be transferred to NeuLion in consideration for the following in respect of each S1 Preferred Share:
(i) each holder of such Company Shares shall cease a cash payment equal to be A/B where (A) is the holder of such Company Shares Cash Consideration and such holder’s name shall be removed from (B) is the applicable securities register of Company Total INSINC Shares;
(ii) legal a number of Series I Warrants determined as follows: A/B where (A) is 1,000,000 and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be (B) is the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofTotal INSINC Shares;
(iii) no fractional shares a number of Parent Common Stock Series II Warrants determined as follows: A/B where (A) is 500,000 and (B) is the Total INSINC Shares; and
(iv) the number of Series I Warrants and Series II Warrants shall be issued in connection with the Arrangement, and no certificates rounded up or scrip for any such fractional shares shall be issued. Any holder down (where an interest of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder0.5 or more rounds up) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent)warrant;
(h) At ten minutes following the D2 Effective Time, without interesta portion of the S1 Preferred Shares held by each Non-Participating INSINC Shareholder, equal to Percentage 2 of such holder’s S1 Preferred Shares, shall be transferred to NeuLion in consideration for a number of NeuLion Shares in respect of each S1 Preferred Share determined by multiplying such fraction by as A/B: where (A) is 6,000,000 and (B) is the closing price Total INSINC Shares. The number of a share NeuLion Shares shall be rounded up or down (where an interest of Parent Common Stock on the Nasdaq Market on the last trading day prior 0.5 or more rounds up) to the Closing Datenearest whole share, except that each Non-Participating INSINC Shareholder shall receive no less than one NeuLion Share;
(i) At fifteen minutes following the D2 Effective Time, each S2 Preferred Share held by a Participating INSINC Shareholder shall be transferred to NeuLion in consideration for a cash payment equal to A/B where (A) is $1,480,000 and (B) is the number of S2 Preferred Shares issued and outstanding at fifteen minutes following the D2 Effective Time;
(j) At twenty minutes following the D2 Effective Time, a portion of the INSINC Shares held by each Participating INSINC Shareholder, equal to Percentage 3 of such holder’s INSINC Shares, shall be transferred to NeuLion in consideration for the following in respect of each INSINC Share:
(i) a cash payment equal to [(A x B/C) — D] / B where (A) is the Cash Consideration, (B) is the INSINC Shares issued and outstanding at twenty minutes following the D2 Effective Time, (C) is the Total INSINC Shares, and (D) is $1,480,000;
(ii) a number of Series I Warrants determined as follows: A/B where (A) is 1,000,000 and (B) is the Total INSINC Shares;
(iii) a number of Series II Warrants determined as follows: A/B where (A) is 500,000 and (B) is the Total INSINC Shares; and
(iv) with respect to each share the number of Parent Common Stock issued to a former holder of Company Shares, the name of such holder Series I Warrants and Series II Warrants shall be entered in rounded up or down (where an interest of 0.5 or more rounds up) to the register of holders of Parent Common Stock as the registered holder thereofnearest whole warrant;
(vk) without any action on At twenty-five minutes following the part D2 Effective Time, a portion of Parentthe INSINC Shares held by each Participating INSINC Shareholder, the Company or the holders equal to Percentage 4 of Company Optionssuch holder’s INSINC Shares, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled transferred to NeuLion in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely consideration for a number of whole shares NeuLion Shares in respect of Parent Common Stock equal each INSINC Share determined as A/B: where (A) is 6,000,000 and (B) is the Total INSINC Shares. The number of NeuLion Shares shall be rounded up or down (where an interest of 0.5 or more rounds up) to the product nearest whole share, except that each Participating INSINC Shareholder shall receive no less than one NeuLion Share;
(l) All INSINC Shares, S1 Preferred Shares, and S2 Preferred Shares acquired hereunder by NeuLion shall be transferred to NeuLion free and clear of all Liens, claims and encumbrances;
(xm) At thirty minutes following the number of Company Common D2 Effective Time, the NeuLion Shares that would be issuable upon exercise of issued in the Company Unexercised Option immediately prior Arrangement to Dobbie shall become eligible for resale, in compliance with Laws and Regulations, in two instalments according to the Effective Time multiplied by following schedule:
(yi) the Option Exchange Ratio, 50% (rounded down to the nearest whole number of shares of Parent Common Stock, and NeuLion Share) on the 180th day after the Effective Date; and
(ii) the per share exercise price for balance on the shares one-year anniversary of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to Effective Date; provided, however, that in the event Dobbie’s employment with NeuLion is terminated (xother than by his resignation) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following one-year anniversary of the Effective Time as to the same percentage Date, 100% of the total number of shares subject thereto as it was vested immediately prior NeuLion Shares issued to Dobbie in the Arrangement will be eligible for resale, in compliance with Applicable Law, on the 120th day after the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledDate; and
(viin) without any action on At thirty-five minutes following the part of ParentD2 Effective Time, the Company directors of INSINC will resign and the persons whose names appear below, shall hold office until the next annual meeting of shareholders of INSINC or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force until their successors are elected or effect.appointed:
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, the Arrangement shall become effective and the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality formality, as further described in the Plan of or by Arrangement, and in accordance with the Company, Parent or any other Person:terms of the Plan of Arrangement.
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company GW Common Share outstanding immediately prior to the Effective Time held by a Dissenting Shareholder shall be and be deemed to be irrevocably transferred to Parent in exchange forFN by the holder thereof, in each casewithout any further act or formality on its part, that number free and clear of shares of Parent Common Stock as all Encumbrances, and FN shall thereupon be obliged to pay the amount therefor determined and payable in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer Plan of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in removed from the central securities register of holders GW as a holder of Parent GW Common Stock Shares and FN shall be recorded as the registered holder thereof;of the GW Common Shares so transferred and shall be the legal owner of such GW Common Shares.
(vb) without any action on Each GW Common Share (other than GW Common Shares held by FN and its affiliates and the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”Dissenting Shareholders) shall be cancelled transferred by the holder thereof, without any further act or formality on its part, to FN (free and clear of any Encumbrances of whatsoever nature), and each Former GW Shareholder (other than FN and its affiliates and the Dissenting Shareholders) shall be entitled to receive, in exchange therefor and subject to the provisions of Sections 2.03(b), 2.03(c) and 4.01(d) of the Plan of Arrangement, consideration comprised of, in accordance with the terms election or deemed election of such Former GW Shareholder contemplated in the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that Arrangement:
(i) Share Consideration — 0.1556 of an FN Common Share for each Company Unexercised Option will be exercisable GW Common Share held; or
(or will become exercisable ii) Cash Consideration — $5.20 for each GW Common Share held, subject to pro-ration in accordance with the Plan of Arrangement.
(c) Any Former GW Shareholder (other than FN and its termsaffiliates and the Dissenting Shareholders) solely for a number who has not duly and validly completed and delivered the Letter of whole shares of Parent Common Stock equal to Transmittal by the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option Election Deadline shall be vested immediately following deemed to have elected to receive the Effective Time as Cash Consideration for 100% of his or her GW Common Shares, subject to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, pro-ration in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision the Plan of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;Arrangement.
(vid) The Company Option GW and Subco shall amalgamate to form one corporate entity (“Amalco”) in accordance with the Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company Arrangement (the “WarrantAmalgamation”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of or by formality, in each case, unless stated otherwise, effective as at one minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred ShareIf the Debentureholder Consent is obtained or the Debentureholder Resolution is approved by the Company Debentureholders at the Debentureholder Meeting, Class B Convertible Preferred Sharethe Company shall effect the mandatory conditional conversion of all outstanding Company Debentures contemplated by the Company Debenture Transaction;
(b) notwithstanding the terms of the Rights Plan, Class C Convertible Preferred Share the Rights Plan shall be terminated and all rights issued pursuant to the Rights Plan shall be cancelled without any payment in respect thereof;
(c) simultaneously:
(A) any vesting conditions applicable to each Incentive Security shall, automatically and without any required action on the part of the holder thereof, accelerate in full, (B) the Company LTIP, Director DSU Plan and Transition Equity Grant Participation Agreement shall be terminated and (C) each such Incentive Security shall, automatically and without any required action on the part of the holder thereof, be transferred to the Company in exchange for, subject to Section 4.3, an amount in cash from the Company equal to the Consideration, less any applicable Taxes required to be withheld, and each such Incentive Security shall be cancelled; and
(ii) with respect to each Incentive Security that is cancelled pursuant to Section 2.3(c)(i), the holder thereof will cease to be the holder of such Incentive Security, will cease to have any rights as a holder in respect of such Incentive Security or under the Director DSU Plan, the Company LTIP or the Transition Equity Grant Participation Agreement, as applicable, other than the right to receive the consideration to which such holder is entitled pursuant to Section 2.3(c)(i), and such holder’s name will be removed from the applicable register, and all agreements, grants and similar instruments relating thereto will be cancelled;
(d) each Common Share outstanding immediately prior to the Effective Time shall be and held by a Dissenting Holder will be deemed to be irrevocably transferred by the holder thereof, without any further act or formality on its part to BidCo and thereupon such holder’s name will be removed from the securities register of the Company in respect of such share, BidCo shall be entered in the securities register of the Company as the holder thereof and at such time each Dissenting Holder will have the rights set out in Section 3.1;
(e) each Preferred Share held by a Dissenting Holder will be deemed to be redeemed and transferred to Parent the AP Preferred Equity Issuer for cancellation by the holder thereof, without any further act or formality on its part, and thereupon such holder’s name will be removed from the securities register of the AP Preferred Equity Issuer in respect of such share and at such time each Dissenting Holder will have the rights set out in Section 3.1;
(f) each outstanding Common Share (which, for greater certainty, excludes any Common Share held by a Dissenting Holder, but includes all Common Shares issued as the Company Debenture Share Consideration pursuant to the Company Debenture Transaction) not already held by BidCo will be transferred to, and acquired by BidCo from Common Shareholders in exchange for, subject to Section 4.3, the right to receive the Consideration and, in respect of each case, that number of shares of Parent such Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to ParentShare:
(i) each holder of such Company Common Shares shall will cease to be the holder of such Company Common Shares so transferred concurrently with the transfer referred to in this Section 2.3(f) and such holder’s name shall will be removed from the applicable securities register of the Company Shares;in respect of such share at such time; and
(ii) legal and beneficial title to such Company Shares BidCo will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner holder of such Company Common Shares at the time of the transfer pursuant to this Section 2.3(f) and will be entered in the applicable securities register of the Company as the sole shareholder holder thereof;
(g) each outstanding Preferred Share (which, for greater certainty, excludes any Preferred Share held by a Dissenting Holder) not already redeemed and transferred to AP Preferred Equity Issuer for cancellation will be transferred from Preferred Shareholders to AP Preferred Equity Issuer in exchange for, subject to Section 4.3, the right to receive the Preferred Share Consideration and, in respect of each such Preferred Share:
(i) each holder of such Preferred Shares will cease to be the holder of such Preferred Shares so transferred concurrently with the transfer referred to in this Section 2.3(g) and such holder’s name will be removed from the securities register of the AP Preferred Equity Issuer in respect of such share at such time;
(ii) AP Preferred Equity Issuer shall be deemed to have redeemed for cancellation such Preferred Share; and
(iii) no fractional shares portion of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, Preferred Share Consideration will be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price respect of a share of Parent Common Stock any accrued and unpaid dividends on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Preferred Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option ; provided that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms none of the Company Option Plan foregoing will occur or will be deemed to occur unless all of the foregoing occur and, in exchange for such cancellationif they occur, such holder shall receive an option to purchase shares all of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option foregoing will be exercisable (deemed to occur without further act or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectformality.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. 3.1 Commencing on at the Effective TimeTime in one minute intervals, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personexcept as otherwise provided herein:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior The articles of Zodiac will be amended as set out in Appendix “B” to Schedule “A” to the Effective Time shall be Arrangement Agreement such that Zodiac creates and be deemed is authorized to be irrevocably transferred to Parent in exchange for, in each case, that issue an unlimited number of shares of Parent Common Stock as determined in accordance Zodiac Class “A” Shares with the formula rights and restrictions set out on Exhibit A attached heretoin Appendix “B” to Schedule “A” to the Arrangement Agreement.
(b) Upon each issued and outstanding Zodiac Subscription Receipt shall be, and shall be deemed to be, exchanged for one Zodiac Class “A” Share, and for each such Zodiac Class “A” Share there shall be added to the transfer of all Company stated capital account for the Zodiac Class “A” Shares an amount equal to Parentthe Financing Price;
(c) AcquisitionCo and Zodiac shall be amalgamated and continued as one corporation, AmalCo, in accordance with the following:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name Zodiac Shares, shall be removed from the applicable securities register cancelled without any repayment of Company Sharescapital;
(ii) legal the Zodiac Class “A” Shares, shall be cancelled without any repayment of capital;
(iii) the articles of AmalCo shall be the same as the articles of AcquisitionCo, and beneficial title the name of AmalCo shall be “Zodiac Exploration Corp.”;
(iv) no securities shall be issued by AmalCo in connection with the amalgamation and for greater certainty, the AcquisitionCo Common Shares issued by AcquisitionCo shall survive and continue to such Company be the AmalCo Common Shares will vest without amendment;
(v) the registered office of AmalCo shall be located at ▇▇▇▇, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
(vi) the property of each of the amalgamating corporations shall continue to be the property of AmalCo;
(vii) AmalCo shall continue to be liable for the obligations of all of the amalgamating corporations;
(viii) any existing cause of action, claim or liability to prosecution of any of the amalgamating corporations shall be unaffected;
(ix) any civil, criminal or administrative action or proceeding pending by or against any of the amalgamating corporations shall be able to be continued to be prosecuted by or against AmalCo;
(x) a conviction against, or ruling, order or judgment in Parent and Parent will favour of or against, any of the amalgamating corporations shall be and able to be enforced by or against AmalCo;
(xi) the Articles of Amalgamation shall be deemed to be the transferee Articles of Incorporation of AmalCo and legal the Certificate of Amalgamation shall be deemed to be the Certificate of Incorporation of AmalCo;
(xii) the by-laws of AmalCo shall be the by-laws of AcquisitionCo until repealed, altered or amended;
(xiii) the first directors of AmalCo shall be the persons whose names and beneficial owner municipality of residence appear below: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Calgary, Alberta
(xiv) the first officers of AmalCo shall be; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - COO Calgary, Alberta ▇▇▇▇▇ ▇▇▇▇▇ – CFO Calgary, Alberta and
(xv) the first auditors of AmalCo shall be PriceWaterhouseCoppers LLP. The first auditors of AmalCo shall hold office until the first annual meeting of AmalCo following the amalgamation or until their successors are elected or appointed.
(d) on the Amalgamation:
(i) the issued and outstanding Zodiac Shares and Zodiac Class “A” Shares (issued pursuant to Section 3.1(b) of this Plan of Arrangement) and the AcquisitionCo Common Shares, other than Zodiac Shares held by a holder who has validly exercised its Dissent Rights and who is ultimately entitled to be paid fair value for the Zodiac Shareholder’s Zodiac Shares, shall be exchanged for Peninsula Shares or converted into issued and outstanding AmalCo Common Shares as follows:
(A) each Zodiac Share held by a Zodiac Shareholder shall be exchanged for the Zodiac Restricted Share Consideration, subject to Article 5 pursuant to which:
(1) such Zodiac Shareholder shall cease to be a holder of Zodiac Shares and the name of such Company Shares and will Zodiac Shareholder shall be entered in deemed to be removed from the applicable central securities register of the Company as the sole shareholder thereofholders of Zodiac Shares;
(iii2) no fractional shares of Parent Common Stock Peninsula shall issue from treasury and cause to be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable delivered to such holder) shall, in lieu of holder the Peninsula Shares to which such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, is entitled as aforesaid and the name of such holder shall be entered added to the central securities register of holders of Peninsula Shares showing such holder as the registered holder of the Peninsula Shares so issued; and
(3) each Zodiac Share so exchanged shall be cancelled;
(B) each Zodiac Class “A” Share held by a former Zodiac Subscription Receiptholder shall be exchanged for the Zodiac Class “A” Share Consideration, subject to Article 5 pursuant to which:
(1) such Zodiac Class “A” Shareholder shall cease to be a holder of Zodiac Class “A” Shares and the name of such Zodiac Class “A” Shareholder shall be deemed to be removed from the central securities register of holders of Zodiac Class “A” Shares;
(2) Peninsula shall issue from treasury and cause to be delivered to such Zodiac Class “A” Shareholder the Peninsula Shares to which such Zodiac Class “A” Shareholder is entitled as aforesaid and the name of such Zodiac Class “A” Shareholder shall be added to the central securities register of holders of Peninsula Shares showing such Zodiac Class “A” Shareholder as the registered holder of the Peninsula Shares so issued; and
(3) each Zodiac Class “A” Share so exchanged shall be cancelled;
(C) all AcquisitionCo Common Shares shall be deemed to be converted on a share for share basis into fully paid and non-assessable AmalCo Common Shares on the basis of one fully paid and non-assessable AmalCo Common Share for each one AcquisitionCo Common Share.
3.2 With respect to each holder of Zodiac Shares (other than Dissenting Shareholders) at the Effective Time:
(a) upon the exchange of the Zodiac Shares for the Zodiac Restricted Share Consideration pursuant to Section 3.1 (d):
(i) such Zodiac Shareholder shall cease to be a holder of the Zodiac Shares so exchanged and the name of such Zodiac Shareholder shall be removed from the register of Zodiac Shareholders as it relates to the Zodiac Shares so exchanged; and
(ii) such Zodiac Shareholder shall become a holder of Peninsula Shares subject to the Restrictions On Trading and Release from the Depositary as set forth in Appendix “A” and the name of such Zodiac Shareholder shall be added to the register of holders of Parent Common Stock as Peninsula Shares with respect to the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, Peninsula Shares issued in exchange for such cancellation, such the Zodiac Shareholder's Zodiac Shares;
3.3 With respect to each holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to Zodiac Class “A” Shares at the Effective Time Time:
(including any repurchase rights or vesting provisions, if applicable), except that a) upon the exchange of the Zodiac Class “A” Shares for the Zodiac Class “A” Share Consideration pursuant to Section 3.1 (d):
(i) each Company Unexercised Option will such Zodiac Class “A” Shareholder shall cease to be exercisable (or will become exercisable in accordance with its terms) solely for a number holder of whole shares the Zodiac Class “A” Shares so exchanged and the name of Parent Common Stock equal such Zodiac Class “A” Shareholder shall be removed from the applicable register of holders of Zodiac Class “A” Shares as it relates to the product of (x) the number of Company Common Zodiac Class “A” Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledexchanged; and
(viiii) without any action on the part of Parent, the Company or the such Zodiac Class “A” Shareholder shall become a holder of that certain warrant to purchase Company Common Peninsula Shares dated as and the name of October 5, 2007 issued by the Company (the such Zodiac Class “Warrant”), the Warrant A” Shareholder shall be terminated as added to the register of holders of Peninsula Shares with respect to the Closing and Peninsula Shares issued in exchange for the Zodiac Class “A” Shareholder’s Zodiac Class “A” Shares;
3.4 Any transfer of securities pursuant to this Plan of Arrangement shall be free and clear of no further force any liens, claims, encumbrances, charges, adverse interests or effectsecurity interests (but subject to the Restrictions On Trading and Release from the Depositary which will be applied to holders of Peninsula Shares issued pursuant to the Zodiac Restricted Share Consideration).
Appears in 1 contract
Arrangement. Commencing on 3.1 At the Effective Time, subject to the provisions of Article 5 hereof, the following shall will occur and shall will be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharethe Shareholder Rights Plan will be terminated and the Rights thereunder cancelled without any further action or formality and for no consideration;
(b) notwithstanding any vesting or exercise or other provisions to which a Target Option might otherwise be subject (whether by contract, Class B Convertible Preferred Sharethe conditions of grant, Class C Convertible Preferred applicable Law or the terms of the Target Share and Company Common Share Option Plan)
(i) each Target Option outstanding immediately prior to as at the Effective Time shall be and will, without further action by or on behalf of any Target Optionholders, be deemed to be irrevocably fully vested and will be transferred by Target Optionholder to Parent Target, free and clear of all Encumbrances, in exchange for, in each case, that number for a fraction of shares of Parent Common Stock as an Target Share determined in accordance with the formula set out following formula: Where: EP = the exercise price applicable to such Target Option; OP = the per Target Share value of the consideration under the Plan of Arrangement, as determined using the Fair Market Share Value as of the Effective Date; No certificates representing Target Shares will be issued to any Target Optionholders in connection with such exchange, provided that the name of the holder will be added to the register maintained by or on Exhibit A attached hereto.behalf of Target in respect of the Target Shares as the holder of the number of Target Shares so issued to the Target Optionholders;
(bii) Upon each Target Option exchanged by a Target Optionholder in accordance with the transfer foregoing will, without any further action by or on behalf of such holder, be cancelled immediately following such exchange and the holder thereof will be deemed to have executed and delivered all Company Shares consents, releases, assignments and waivers, statutory or otherwise, required to Parent:cancel such Target Options in accordance with this §3.1(b)(ii);
(iiii) each holder of such Company Shares shall Target Optionholder will cease to be the holder thereof and will cease to have any rights as a holder of such Company Shares and Target Option or under the Target Share Option Plan, the name of such holder’s name shall holder will be removed from the applicable register maintained by or on behalf of Target in respect of Target Options as of the Effective Time, and all option agreements, grants and similar instruments relating to such Target Option will be cancelled; and
(iv) the Target Share Option Plan will be terminated;
(c) each of the issued and outstanding Target Shares, other than those held by Dissenting Shareholders, will be deemed to be acquired by Purchaser, free and clear of any Encumbrances, in exchange for the Cash Consideration and 0.9217 Purchaser Shares (the “Exchange Ratio”), provided that the aggregate number of Purchaser Shares payable to any Target Shareholder, if calculated to include a fraction of a Purchaser Share, will be rounded down to the nearest whole Purchaser Share, with no consideration being paid for the fractional share;
(d) any Cash Consideration owing to a former holder of Target Shares will be rounded up to the next whole cent;
(e) each Target Shareholder will be deemed to have transferred such Target Shares held by him to Purchaser, and the Purchaser Shares and Cash Consideration to be paid by the Purchaser to the Target Shareholder will be deemed to be paid in exchange therefor;
(f) each Target Shareholder will cease to be a holder of Target Shares and the name of each Target Shareholder will be removed from the central securities register of Company SharesTarget as of the Effective Date;
(iig) legal each Target Shareholder will be deemed to have executed and beneficial title delivered all consents, releases, assignments and waivers, statutory or otherwise, required to such Company Shares will vest in Parent implement and Parent carry out the Arrangement;
(h) Purchaser will be and will be deemed to be the transferee of all Target Shares, free and legal and beneficial owner clear of such Company Shares any Encumbrances, and will be entered in the applicable central securities register of the Company Target as the sole shareholder holder of such Target Shares as of the Effective Date;
(i) each Target Share held by the Purchaser, including the Target Shares acquired pursuant to §3.1(c) hereof, will be transferred to Subco in consideration of the issue by Subco to the Purchaser of one common share of Subco for each Target Share so transferred;
(j) the stated capital in respect of the Target Shares will be reduced to $1.00 without any repayment of capital in respect thereof;
(k) Target will file an election with the CRA to cease to be a public corporation for the purposes of the Tax Act; and
(l) Target and Subco will amalgamate to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 273 of the BCBCA such that:
(i) Purchaser will receive on the amalgamation one Amalco common share in exchange for each Subco common share previously held, and all of the issued and outstanding the Target Shares will be cancelled without any repayment of capital in respect thereof;
(ii) the stated capital of the common shares of Amalco will be an amount equal to the paid up capital, as that term is defined in the Tax Act, attributable to the common shares of Subco immediately prior to the amalgamation;
(iii) no fractional shares Amalco will own and hold all of Parent Common Stock shall the property of Target and Subco and, without limiting the provisions hereof, all rights of creditors or others will be issued in connection with the Arrangementunimpaired by such amalgamation, and no certificates all liabilities and obligations of Target and Subco, whether arising by contract or scrip for any such fractional shares shall otherwise, may be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded enforced against Amalco to the nearest whole cent), without interest, determined same extent as if such liabilities and obligations had been incurred or contracted by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Dateit;
(iv) with respect to each share Amalco will be liable for all of Parent Common Stock issued to a former holder the liabilities and obligations of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereofTarget and Subco;
(v) all rights, contracts, permits and interests of Target and Subco will be rights, contracts, permits and interests of Amalco as if Target and Subco continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Target or Subco under any such rights, contracts, permits and interests;
(vi) any existing cause of action, claim or liability to prosecution will be unaffected;
(vii) any civil, criminal or administrative action or proceeding pending by or against either Subco or Target will be continued by or against Amalco; and
(viii) a conviction against, or ruling, order or judgment in favour of or against either Subco or Target may be enforced by or against Amalco.
3.2 Notwithstanding that the transactions or events set out in §3.1 may occur or be deemed to occur in the order therein set out without any action on the part further act or formality, each of ParentTarget, the Company Subco and Purchaser agree to make, do and execute or the holders of Company Optionscause and procure to be made, except done and executed all such further acts, deeds, agreements, transfers, assurances, instruments or documents as otherwise may be required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled it in accordance with the terms order to further document or evidence any of the Company Option Plan andtransactions or events set out in §3.1 including, in exchange without limitation, any resolution of directors authorizing the issue, transfer or purchase for such cancellationcancellation of shares, such holder shall receive an option any share transfer powers evidencing the transfer of shares, any receipt therefor and any necessary additions to purchase shares or deletions from share registers and transfer of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement Assets.
3.3 No fractional Target Shares or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option Purchaser Shares will be exercisable (or will become exercisable in accordance with its terms) solely for a issued to any person pursuant to this Plan of Arrangement. The number of whole shares Target Shares or Purchaser Shares to be issued to any person pursuant to this Plan of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would Arrangement will be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common StockTarget Share or Purchaser Share, and (ii) the per share exercise price as applicable, with no consideration being paid for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectfractional share.
Appears in 1 contract
Arrangement. Commencing on 3.1 Commencing, at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur sequentially in the following order order, without any further authorization, act or formality except as otherwise provided herein (provided that none of or by the Company, Parent or any other Person:following shall occur unless all of the following occur):
(a) Each Class A Convertible Preferred Sharethe Crew Common Shares held by Dissenting Crew Shareholders shall be deemed to have been transferred to Purchaser, Class B Convertible Preferred Sharefree and clear of all liens, Class C Convertible Preferred claims and encumbrances, and cancelled and, as of the Effective Time, such Dissenting Crew Shareholders shall cease to have any rights as Crew Shareholders, other than the right to be paid the fair value of their Crew Common Shares in accordance with Article 4 of this Plan of Arrangement;
(b) in accordance with the terms of the Crew Incentive Plan, the applicable grant agreement in relation thereto and the Arrangement Agreement, each Crew Incentive Award outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action or formality on behalf of the holder thereof, Crew or Purchaser, be fully and unconditionally vested, and shall be and be deemed to be settled by Crew in exchange for, subject to Section 5.7 such number of Crew Common Shares as is equal to the Crew Net Share Amount and Company Crew shall promptly pay to the appropriate Governmental Authority an amount of cash equal to the Withholdings Amount in respect of the settlement of such holder’s Crew Incentive Awards;
(c) immediately following the settlements described in Section (b), each former holder of Crew Incentive Awards shall be entered in the register of the holders of Crew Common Shares maintained by or on behalf of Crew as the holder of such Crew Common Shares and such Crew Common Shares shall be issued to such former holder of Crew Incentive Awards as fully paid and non-assessable Crew Common Shares and following such issuance the former holder of such Crew Incentive Awards shall cease to have any rights as a former holder of Crew Incentive Awards other than the right to receive the Crew Net Share Amount and, thereafter, the Share Consideration in exchange for such Crew Common Shares in accordance with Section 3.1(d) of this Plan of Arrangement whereupon all Crew Incentive Awards shall be, and shall be deemed to be, cancelled and terminated by Crew, all obligations in respect of the Crew Incentive Awards shall be deemed to be fully satisfied and the holders thereof shall cease to have any rights or claims in respect thereof and the Crew Incentive Plan shall be terminated and of no further force and effect; and
(d) each Crew Common Share outstanding immediately prior to the Effective Time (other than those held by Dissenting Crew Shareholders) and each Crew Common Share issued under Section 3.1(c) shall be transferred by the holder thereof without any further action on its part, free and clear of all liens, claims and encumbrances, to Purchaser in exchange for the Share Consideration and Purchaser shall be deemed to be irrevocably the legal and beneficial owner of such transferred to Parent in exchange forCrew Common Share free and clear of any liens, in each caseclaims or encumbrances, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand upon such transfer:
(i) each holder the holders of such Company Crew Common Shares shall cease to be the holder holders of Crew Common Shares, the names of such Company Shares and such holder’s name holders shall be removed from the applicable securities register of Company Sharesholders of Crew Common Shares with respect to all such Crew Common Shares and such holders cease to have any rights as a holder of such Crew Common Shares (or such fraction of a Crew Common Share) other than the right to receive the consideration for such Crew Common Share (or such fraction of a Crew Common Share) in accordance with this Plan of Arrangement;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be Purchaser shall become the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register holder of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Crew Common Stock Shares so transferred and shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled added to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Crew Common Stock Shares as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(viiiii) without any action each Crew Shareholder whose Crew Common Shares are so transferred shall be entitled to receive from the Purchaser the Share Consideration payable to such Crew Shareholders pursuant to the Arrangement on the part basis set forth herein and the name of Parentsuch Crew Shareholder shall be added to the register of holders of Purchaser Shares.
3.2 The Arrangement shall be structured such that, assuming the Arrangement Resolution is approved by the Crew Shareholders at the Crew Meeting and the Final Order is obtained, the Company issuance or deemed issuance, for purposes of the holder United States Securities Act of that certain warrant 1933, as amended, as applicable, of the Purchaser Shares to purchase Company the Crew Shareholders under the Arrangement will not require registration under the United States Securities Act of 1933, as amended, in reliance on the exemption provided by Section 3(a)(10) thereof and similar exemptions under U.S. state securities laws.
3.3 A Crew Shareholder (other than a Non-Resident Shareholder) who receives Purchaser Shares under the Arrangement shall be entitled to make a joint income tax election with Purchaser, pursuant to subsection 85(1) or 85(2) of the Tax Act, as applicable (and the analogous provisions of provincial tax laws). Purchaser shall make available on Purchaser's website tax election forms required under the Tax Act within 30 days of the Effective Date. Any Crew Shareholder (other than a Non-Resident Shareholder) who wants to make such election and otherwise qualifies to make such election may do so by providing to Purchaser two signed copies of the necessary election forms within 120 days following the Effective Date, duly completed with the details of the number of Crew Common Shares dated as transferred and the applicable agreed amount or amounts for the purposes of October 5such election. Thereafter, 2007 issued by subject to the Company election forms complying with the provisions of the Tax Act (the “Warrant”or applicable provincial or territorial income tax law), the Warrant shall forms will be terminated as signed by ▇▇▇▇▇▇▇▇▇ and returned to such Crew Shareholder by ordinary mail within 30 days after the receipt thereof by Purchaser for filing with the applicable Governmental Authority. Purchaser will not be responsible for the proper completion of any election form and Purchaser will not be responsible for any taxes resulting from the Closing failure by a former Crew Shareholder to properly complete or file the election forms in the form and shall be of no further force or effectmanner and within the time prescribed by the Tax Act (and any applicable provincial tax laws).
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share each Tahoe PSA outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (held by a “Company Unexercised Option”) Tahoe PSA Holder shall be cancelled immediately vest in accordance with the terms of the Company Option Tahoe PSA Plan and will be settled by Tahoe issuing to the Tahoe PSA Holder one Tahoe Share less any amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe PSA Holder as fully paid and non-assessable shares in the capital of Tahoe: provided that no share certificates shall be issued with respect to such shares;
(b) each Tahoe RSA outstanding immediately prior to the Effective Time that is held by a Tahoe RSA Holder shall immediately vest in accordance with the terms of the Tahoe Long Term Incentive Plan;
(c) each Tahoe DSA outstanding immediately prior to the Effective Time that is held by a Tahoe DSA Holder shall immediately vest in accordance with the terms of the Tahoe Long Term Incentive Plan and will be settled by Tahoe issuing to the Tahoe DSA Holder one Tahoe Share less any amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe DSA Holder as fully paid and non-assessable shares in the capital of Tahoe: provided that no share certificates shall be issued with respect to such shares;
(d) each Tahoe SAR outstanding immediately prior to the Effective Time that is held by a Tahoe SAR Holder and all rights in respect thereof shall be cancelled and terminated without any payment in respect thereof;
(e) each Dissenting Shareholder shall transfer to Pan American all of the Dissent Shares held, without any further act or formality on its part, and in consideration therefor, Pan American shall issue to the Dissenting Shareholder a debt-claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so transferred
(i) the Dissenting Shareholder shall cease to be the holder thereof,
(ii) the name of the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares,
(iii) the Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(iv) the name of Pan American shall be added to the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof; and
(f) each Tahoe Shareholder shall transfer to Pan American each whole Tahoe Share held (other than any Tahoe Shares held by Pan American immediately before the Effective Time or acquired by Pan American from a Dissenting Shareholder under Section 3.1(e), but including, for greater certainty, any Tahoe Shares held or issued pursuant to Section 3.1(a), 3.1(b) or 3.1(c)) in exchange for such cancellation(A) one CVR and (B),
(i) in the case of a Tahoe Share for which the Cash Election was made under Section 3.2(a)(i), such the Cash Consideration, or
(ii) in the case of a Tahoe Share for which the Share Election was made under Section 3.2(a)(ii) or deemed to have been made under Section 3.2(b) or 5.1(b), the Share Consideration, in each case subject to proration in accordance with Section 3.3, and in respect of the Tahoe Shares so transferred
(iii) the Tahoe Shareholder shall cease to be the holder thereof,
(iv) the name of the Tahoe Shareholder shall receive an option be removed from the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares,
(v) the Tahoe Shareholder shall be deemed to purchase shares have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(vi) the name of Parent Common Stock with substantially Pan American shall be added to the same terms and conditions register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof;
(including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if anyg) as were in effect each Tahoe Option outstanding immediately prior to the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a Replacement Option to acquire from Pan American such number of whole shares of Parent Common Stock Pan American Shares as is equal to the product of to: (xA) the number of Company Common Tahoe Shares that would be were issuable upon exercise of the Company Unexercised such Tahoe Option immediately prior to the Effective Time Time, multiplied by (yB) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common StockPan American Shares, and (ii) the per share at an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Pan American Share equal to the quotient equal to determined by dividing: (xX) the per share exercise price for per Tahoe Share at which such Company Unexercised Tahoe Option was exercisable immediately prior to the Effective Time divided Time, by (yY) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent cent. Except as set out above, the terms of each Replacement Option”). Each Company Unexercised Option shall be vested immediately following the same as the terms of the Tahoe Option exchanged therefor pursuant to any agreement evidencing the grant thereof prior to the Effective Time. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange. Therefore, in the event that the Replacement Option In-The-Money Amount in respect of a Tahoe Option would otherwise exceed the Tahoe Option In-The-Money Amount in respect of the Replacement Option, the number of Pan American Shares which may be acquired on exercise of the Replacement Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Replacement Option In-The-Money Amount in respect of the Replacement Option does not exceed the Tahoe Option In-The-Money Amount in respect of the Tahoe Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged;
(h) each Tahoe Share held by Pan American, including the Tahoe Shares acquired pursuant to Section 3.1(f) hereof, shall be transferred to Subco and in consideration therefor Subco shall issue to Pan American one fully paid and non-assessable common share of Subco for each Tahoe Share so transferred, and
(i) the name of Pan American shall be removed from the central securities register as a holder of Tahoe Shares;
(ii) Subco shall be recorded as the registered holder of the Tahoe Shares so transferred and shall be deemed to be the legal and beneficial owner of such Tahoe Shares; and
(iii) the amount added to the capital of the Subco common shares will be equal to the lesser of (A) the paid up capital (as such term is defined in the Tax Act) of the Tahoe Shares so transferred and (B) the fair market value of the Tahoe Shares so transferred;
(i) the capital of the Tahoe Shares shall be reduced to US$1.00 without any repayment of capital in respect thereof;
(j) Tahoe and Subco shall merge (the “Merger”) to form one corporate entity (the “Merged Company”) with the same effect as if they had amalgamated under Section 269 of the BCBCA except that the separate legal existence of Subco shall not cease and Subco shall survive the merger, and Pan American shall receive on the Merger one common share of the Merged Company in exchange for each Subco common share previously held and all of the issued and outstanding Tahoe Shares will be cancelled without any repayment of capital in respect thereof;
(k) without limiting the generality of Section 3.1(j), the separate legal existence of Tahoe shall cease without Tahoe being liquidated or wound up; Tahoe and Subco will continue as one company; and the properties and liabilities of Tahoe will become the properties and liabilities of Subco; and
(l) from and after the Effective Date, at the time of the step contemplated in Section 3.1(j):
(i) Subco as the Merged Company will own and hold all property of Subco and will own and hold all property of Tahoe and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such merger, and all liabilities and obligations of Tahoe and Subco, whether arising by contract or otherwise, may be enforced against Subco to the same percentage extent as if such obligations had been incurred or contracted by it;
(ii) Subco as the Merged Company will continue to be liable for all of the total liabilities and obligations of Tahoe and Subco;
(iii) all rights, contracts, permits and interests of Tahoe and Subco will continue as rights, contracts, permits and interests of Subco as the Merged Company as if Tahoe and Subco continued and, for greater certainty, the merger will not constitute a transfer or assignment of the rights or obligations of either of Tahoe or Subco under any such rights, contracts, permits and interests;
(iv) any existing cause of action, claim or liability to prosecution will be unaffected;
(v) a civil, criminal or administrative action or proceeding pending by or against either Subco or Tahoe may be continued by or against the Merged Company;
(vi) a conviction against, or ruling, order or judgment in favour of or against either Subco or Tahoe may be enforced by or against the Merged Company;
(vii) the name of the Merged Company shall be in the name of Subco;
(viii) the Merged Company shall be authorized to issue an unlimited number of common shares subject thereto as it was vested without par value;
(ix) the Notice of Articles and Articles of the Merged Company shall be substantially in the form of the Subco Notice of Articles and Articles;
(x) the first annual general meeting of the Merged Company will be held within 18 months from the Effective Date;
(xi) the registered office of the Merged Company shall be the registered office of Subco;
(xii) the first directors of the Merged Company following the Merger shall be the individuals who were directors of Subco immediately prior to the Effective Time;
(xiii) the first officers of the Merged Company following the Merger shall be the individuals, except to the extent such Company Unexercised Option (either by its terms or by the terms if any, who were officers of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent Subco immediately prior to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vixiv) The the aggregate capital of the common shares of the Merged Company Option Plan shall will be cancelledan amount equal to the paid up capital, as that term is defined in the Tax Act, attributable to the shares of Subco immediately prior to the Merger; and
(viixv) without any action the Merger shall not constitute an acquisition of property of Tahoe or Subco by the other pursuant to the purchase of property or as a result of the distribution or winding-up of Tahoe or Subco, it being expressly provided that the events provided for in this Section 3.1 will be deemed to occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by procedures related thereto may not be completed until after the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further authorization, act or formality formality, with each such step occurring one minute after the completion of or by the Company, Parent or any other Personimmediately preceding step:
(a) The Declaration of Trust and the articles, partnership agreements or other constating document of each REIT Subsidiary shall be amended, and deemed to be amended, to the extent necessary to facilitate the Arrangement and the implementation of the steps and transactions described herein;
(b) All URP Rights issued pursuant to the Rights Plan shall be cancelled without any payment in respect thereof, the Rights Plan shall terminate with the result that it will no longer have any force or effect, and thereafter no person will have any further liability or obligation to the former holders of URP Rights under such Rights Plan and the former holders of URP Rights will permanently cease to have any rights whatsoever under such Rights Plan;
(c) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share Unit Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall be and be deemed to be irrevocably unconditionally and fully vested and exercisable in accordance with its terms, and each such Unit Option shall, without any further action by or on behalf of a holder of Unit Options, be deemed to be surrendered and transferred by such holder to Parent the REIT in exchange forfor a cash payment from the REIT equal to the amount (if any) by which the Consideration in respect of each REIT Unit underlying each Unit Option exceeds the exercise price of such Unit Option, in each casecase (the “Unit Option Payment”), that number less applicable withholdings, and each Unit Option shall immediately be cancelled and, for greater certainty, where such amount is zero or negative, no Unit Option Payment will be payable to the holder of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.such Unit Option;
(bd) Upon If any Unpaid Permitted Distribution exists as of the transfer of all Company Shares to ParentEffective Time:
(i) the additional Deferred Units that would, under the terms of the Deferred Unit Plan (as if the Effective Date were the payment date for such Unpaid Permitted Distribution), be credited to a Deferred Unit holder’s account on the payment date of such Unpaid Permitted Distribution, shall be deemed to be credited to such holder’s account;
(ii) the additional Restricted Units that would, under the terms of the Restricted Unit Plan (as if the Effective Date were the payment date for such Unpaid Permitted Distribution), be credited to a Restricted Unit holder’s account on the payment date of such Unpaid Permitted Distribution, shall be deemed to be credited to such holder’s account; and
(iii) the additional Performance Units that would, under the terms of the Restricted Unit Plan (as if the Effective Date were the payment date for such Unpaid Permitted Distribution), be credited to a Performance Unit holder’s account on the scheduled payment date of such Unpaid Permitted Distribution, shall be deemed to be credited to such holder’s account.
(e) Each Deferred Unit outstanding immediately following the preceding step (including Deferred Units deemed to be issued pursuant to Section 3.1(d)(i) above) shall, without any further action by or on behalf of a holder of Deferred Units, be cancelled in exchange for a cash payment from the REIT of an amount equal to the Consideration (the “Deferred Unit Payment”), less applicable withholdings, all in full satisfaction of the obligations of the REIT in respect of the Deferred Units;
(f) Each Restricted Unit outstanding immediately following the preceding step (including Restricted Units deemed to be issued pursuant to Section 3.1(d)(ii) above), whether vested or unvested, shall be deemed to be unconditionally and fully vested, and each such Restricted Unit shall, without any further action by or on behalf of a holder of Restricted Units, be cancelled in exchange for a cash payment from the REIT of an amount equal to the Consideration (the “Restricted
(g) All Performance Units outstanding immediately following the preceding step (including Performance Units deemed to be issued pursuant to Section 3.1(d)(iii) above), whether vested or unvested, shall be deemed to be unconditionally and fully vested based on the applicable Performance Factor (calculated in accordance with the terms of the Performance Unit Plan as if the Effective Date were the vesting date of such Performance Units), and each such Performance Unit (including additional Performance Units that vest as a result of the application of the applicable Performance Factor) shall, without any further action by or on behalf of a holder of Performance Units, be cancelled in exchange for a cash payment from the REIT of an amount equal to the Consideration (the “Performance Unit Payment”), less applicable withholdings, all in full satisfaction of the obligations of the REIT in respect of the Performance Units;
(i) Each holder of a Unit Option, each holder of such Company Shares a Deferred Unit, each holder of a Restricted Unit and each holder of a Performance Unit shall cease to be the a holder of such Company Shares and Unit Option, such Deferred Unit, such Restricted Unit or such Performance Unit, as the case may be, (ii) each such holder’s name shall be removed from the each applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
register, (iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company SharesUnit Option Plan, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of ParentDeferred Unit Plan, the Company or Restricted Unit Plan and any and all agreements, arrangements and understandings relating to any and all of the holders of Company Unit Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised OptionDeferred Units, the number of shares for which such Company Unexercised Option is exercisable Restricted Units and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Performance Unit shall be terminated as of the Closing and shall be of no further force and effect, and (iv) each such holder shall thereafter have only the right to receive the Unit Option Payment, Deferred Unit Payment, Restricted Unit Payment or effect.Performance Unit Payment to which they are entitled pursuant to Sections 3.1(c), 3.1(e), 3.1(f) and 3.1(g), as applicable, at the time and in the manner specified therein and contemplated hereby;
(i) The REIT shall pay out, as a special distribution on the REIT Units, the amount, if any, that is determined by it prior to the Effective Time to be equal to its bona fide best estimate of the amount, if any, of its taxable income for the taxation year of the REIT that ends on the Effective Date (such amount to be reduced to take into account any deductions under subsection 104(6) of the Tax Act in respect of prior distributions during that period);
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on 3.1 On the Effective TimeDate, each of the following shall occur and events set out below shall be deemed to occur at the Effective Time in the following order set forth below without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share the Extendicare Subordinate Voting Shares and Company Common Share outstanding immediately prior to the Effective Time Extendicare Multiple Voting Shares held by Dissenting Shareholders who have validly exercised Dissent Rights shall be and be deemed to be irrevocably have been transferred to Parent in exchange forExtendicare and cancelled and shall cease to be outstanding and such Dissenting Shareholders shall cease to have any rights as Shareholders other than the right to be paid the fair value of their Extendicare Subordinate Voting Shares and/or their Extendicare Multiple Voting Shares, in each caseas the case may be, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.Section 4.1;
(b) Upon the transfer articles of all Company Shares to Parent:Extendicare shall be amended
(i) each holder to create an unlimited number of such Company Shares shall cease to be the holder of such Company common shares designated as Common Shares and such holder’s name shall be removed from having attached thereto the applicable securities register rights, privileges, restrictions and conditions set out in Schedule A attached hereto; and
(ii) to decrease the authorized share capital by cancelling all of Company the authorized Class I Preferred Shares and Class II Preferred Shares and by deleting the rights, privileges, restrictions and conditions attached to the Class I Preferred Shares and Class II Preferred Shares;
(iic) legal each Extendicare Subordinate Voting Share shall be exchanged by the holder thereof with Extendicare for one Extendicare Common Share and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofone ALC Class A Share;
(iiid) no fractional shares of Parent Common Stock each Extendicare Multiple Voting Share shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction exchanged by the closing price of a share of Parent holder thereof with Extendicare for 1.075 Extendicare Common Stock on the Nasdaq Market on the last trading day prior to the Closing DateShares and one ALC Class B Share;
(ive) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable Extendicare shall reduce the aggregate amount in accordance with its terms) solely the stated capital account it maintains for a number of whole shares of Parent Common Stock the Extendicare Multiple Voting Shares to nil, and shall add an amount equal to the product aggregate amount of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior such reduction to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price stated capital account it maintains for the shares of Parent Extendicare Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawShares;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Arrangement Agreement (Extendicare Real Estate Investment Trust)
Arrangement. Commencing on at the Effective Time, each of the following transactions or events set out below shall occur and shall be deemed to occur in the following order sequence, in each case, without any further authorizationauthorizations, act or formality on the part of or by any Person, effective as at two-minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and each of the Company Common Share outstanding immediately prior to the Effective Time Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be and be deemed to be irrevocably transferred have transferred, without further act or formality by or on behalf of any Dissenting Holder, to Parent the Purchaser in exchange forconsideration for a debt claim against the Purchaser for the amount determined under Article 3, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand:
(i) each holder of such Company Shares Dissenting Holder shall cease to be the holder of such Company Shares and to have any rights as a Company Shareholder other than the right to be paid fair value for such holderCompany Shares, as set out in Section 3.1;
(ii) such Dissenting Holder’s name shall be removed as the holder of Company Shares from the applicable securities register of Company Shares;Shareholders maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and the Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Shares, free and clear of all Liens (other than the right to be paid fair value for such Company Shares and will be entered as set out in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the ArrangementSection 3.1), and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in into the applicable register of holders Company Shareholders maintained by or on behalf of Parent Common Stock as the registered holder thereof;Company; and
(vb) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Out-Of-The Money Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each held by a Company Unexercised Option will Optionholder shall be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a Replacement Option (the “Option Exchange”) to acquire from the Purchaser, such number of whole shares of Parent Common Stock Purchaser Shares as is equal to the product of of: (xA) the number of Company Common Shares that would be issuable upon exercise of the subject to such Company Unexercised Out-Of-The Money Option immediately prior to the Effective Time Time; multiplied by (yB) the Option Exchange Ratio, provided that, if the foregoing would result in the issuance of a fraction of a Purchaser Share on any particular exercise of Replacement Options by a Company Optionholder, then the number of Purchaser Shares otherwise issued shall be rounded down to the nearest whole number of shares of Parent Common StockPurchaser Shares, and and:
(iii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised per Purchaser Share subject to a Replacement Option will shall be an amount equal to the quotient equal to product of: (xA) the per share exercise price for per Company Share subject to each such Company Unexercised Out-Of-The-Money Option immediately prior to before the Effective Time Time; divided by (yB) the Option Exchange Ratio, rounded up to the nearest whole cent cent, provided that the exercise price per Purchaser Share subject to a Replacement Option held by a Company Optionholder shall be and be deemed to be automatically adjusted in any case where the Company Optionholder’s Replacement Options have an aggregate Replacement Option In-The-Money Amount to reduce such Replacement Option In-The-Money Amount to nil, with the intention that that subsection 7(1.4) of the Tax Act will apply to each Option Exchange;
(a “Parent ii) each such Replacement Option shall have the same terms and conditions with respect to expiry date and otherwise as were applicable in respect of such Company Out-Of-The-Money Option”). Each Company Unexercised , except that each Replacement Option shall be fully vested and no services shall be required from any holder of Replacement Options to continue to hold or exercise any Replacement Option; and
(iii) the Company Optionholder will cease to be the holder of such Company Out-Of- The-Money Option, will cease to have any rights as a holder in respect of such Company Out-Of-The-Money Option, will be removed from the applicable register of the Company Options, and all Award Agreements relating thereto will be cancelled, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(c) each Company In-The-Money Option (whether vested or unvested) held by a Company Optionholder will be surrendered to the Company and cancelled in exchange for:
(i) a number of Company Shares (including for greater certainty, fractional Company Shares) having a Fair Market Value equal to the aggregate In-The-Money Amount of the Company Optionholder’s Company In-The-Money Options and the Company Shares will be deemed to be issued to such Company Optionholder at an issue price equal to the Fair Market Value thereof as fully paid and non-assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(ii) the Company Optionholder will cease to be the holder of such Company In-The- Money Option, will cease to have any rights as a holder in respect of such Company In-The-Money Option, will be removed from the applicable register of the Company Options, and all Award Agreements relating thereto will be cancelled, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(d) the Company Option Plan shall be terminated, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations thereunder;
(e) each Company Out-Of-The Money Warrant outstanding immediately following prior to the Effective Time as held by a Company Warrantholder shall be exchanged for a Replacement Warrant to acquire from the Purchaser, the number of Purchaser Shares equal to the same percentage of product of: (A) the total number of shares Company Shares subject thereto as it was vested to such Company Out-Of-The Money Warrant immediately prior to the Effective Time; multiplied by (B) the Exchange Ratio, except provided that, if the foregoing would result in the issuance of a fraction of a Purchaser Share on any particular exercise of Replacement Warrant by a Company Warrantholder, then the number of Purchaser Shares otherwise issued shall be rounded down to the extent nearest whole number of Purchaser Shares, and:
(i) the exercise price per Purchaser Share subject to a Replacement Warrant shall be an amount equal to the product of: (A) the exercise price per Company Share subject to each such Company Unexercised Option Out-Of-The Money Warrant immediately before the Effective Time; divided by (either B) the Exchange Ratio, rounded up to the nearest whole cent;
(ii) each such Replacement Warrant shall be on the same terms as the Company Warrant it is replacing; and
(iii) the Company Warrantholder will cease to be the holder of such Company Out-Of- The-Money Warrant, will cease to have any rights as a holder in respect of such Company Out-Of-The-Money Warrant, will be removed from the applicable register of the Company Warrants, and all agreements relating thereto will be cancelled, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(f) each Company In-The-Money Warrant held by its terms a Company Warrantholder will be surrendered to the Company and cancelled in exchange for:
(i) a number of Company Shares (including for greater certainty, fractional Company Shares), having a Fair Market Value equal to the aggregate In-The-Money Amount of the Company Warrantholder’s Company In-The-Money Warrants, and the Company Shares will be deemed to be issued to such Company Warrantholder at an issue price equal to the Fair Market Value thereof as fully paid and non- assessable Company Shares, provided that no share certificates shall be issued with respect to such Company Shares; and
(ii) the Company Warrantholder will cease to be the holder of such Company In-The- Money Warrant, will cease to have any rights as a holder in respect of such Company In-The-Money Warrant, will be removed from the applicable register of the Company Warrants, and all agreements relating thereto will be cancelled, and none of the Company, Trichome or the Purchaser shall have any further liabilities or obligations with respect thereto;
(g) each Company Exchangeable Share outstanding immediately prior to the Effective Time held by the terms of another Contract) provides for acceleration of vesting thereof. Each a Company Unexercised Option shallExchangeable Shareholder shall be exchanged, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledExchangeable Shares, for a Company Share; and
(viii) without any action on the part of Parent, the each Company or Exchangeable Shareholder shall cease to be the holder of that certain warrant such Company Exchangeable Shares, will cease to purchase have any rights as a holder in respect of such Company Common Exchangeable Shares;
(ii) the name of each such Company Exchangeable Shareholder shall be removed from the register of the Company Exchangeable Shareholders maintained by or on behalf of MYM International Brands Inc.; and
(iii) the Company shall be deemed to be the transferee of such Company Exchangeable Shares, free and clear of all Liens, and shall be entered in the register of Company Exchangeable Shareholders maintained by or on behalf of MYM International Brands Inc.;
(h) each Company Share (other than Company Shares dated as held by a Dissenting Holder in respect of October 5, 2007 issued which Dissent Rights have been validly exercised under Section (a)) held by a Company Shareholder shall be assigned and transferred by the Company (Shareholder to the “Warrant”)Purchaser and in consideration therefor, the Warrant Purchaser will issue, for an issue price equal to the Fair Market Value thereof, that number of fully paid Purchaser Shares equal to the Exchange Ratio; and
(i) each Company Shareholder shall cease to be the holder of such Company Shares, will cease to have any rights as a holder in respect of such Company Shares, other than the right to be paid the Consideration per Company Share in accordance with this Plan of Arrangement;
(ii) the name of each such Company Shareholder shall be terminated as removed from the register of the Closing Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares, free and clear of all Liens, and shall be entered in the register of no further force Company Shareholders maintained by or effecton behalf of the Company;
(i) the Purchaser shall sell all of the Company Shares to Trichome in exchange for ◼ Trichome Shares, and
(i) the Purchaser shall cease to be the holder of such Company Shares and will cease to have any rights as a holder in respect of such Company Shares;
(ii) the name of the Purchaser shall be removed from the register of the Company Shareholders maintained by or on behalf of the Company; and
(iii) Trichome shall be deemed to be the transferee of such Company Shares, free and clear of all Liens, and shall be entered in the register of Company Shareholders maintained by or on behalf of the Company.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share each Tahoe PSA outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (held by a “Company Unexercised Option”) Tahoe PSA Holder shall be cancelled immediately vest in accordance with the terms of the Company Option Tahoe PSA Plan and will be settled by Tahoe issuing to the Tahoe PSA Holder one Tahoe Share less any amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe PSA Holder as fully paid and non-assessable shares in the capital of Tahoe: provided that no share certificates shall be issued with respect to such shares;
(b) each Tahoe RSA outstanding immediately prior to the Effective Time that is held by a Tahoe RSA Holder shall immediately vest in accordance with the terms of the Tahoe Long Term Incentive Plan;
(c) each Tahoe DSA outstanding immediately prior to the Effective Time that is held by a Tahoe DSA Holder shall immediately vest in accordance with the terms of the Tahoe Long Term Incentive Plan and will be settled by Tahoe issuing to the Tahoe DSA Holder one Tahoe Share less any amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe DSA Holder as fully paid and non-assessable shares in the capital of Tahoe: provided that no share certificates shall be issued with respect to such shares;
(d) each Tahoe SAR outstanding immediately prior to the Effective Time that is held by a Tahoe SAR Holder and all rights in respect thereof shall be cancelled and terminated without any payment in respect thereof;
(e) each Dissenting Shareholder shall transfer to Pan American all of the Dissent Shares held, without any further act or formality on its part, and in consideration therefor, Pan American shall issue to the Dissenting Shareholder a debt-claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so transferred
(i) the Dissenting Shareholder shall cease to be the holder thereof,
(ii) the name of the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares,
(iii) the Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(iv) the name of Pan American shall be added to the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof; and
(f) each Tahoe Shareholder shall transfer to Pan American each whole Tahoe Share held (other than any Tahoe Shares held by Pan American immediately before the Effective Time or acquired by Pan American from a Dissenting Shareholder under Section 3.1(e), but including, for greater certainty, any Tahoe Shares held or issued pursuant to Section 3.1(a), 3.1(b) or 3.1(c)) in exchange for such cancellation(A) one CVR and (B),
(i) in the case of a Tahoe Share for which the Cash Election was made under Section 3.2(a)(i), such the Cash Consideration, or
(ii) in the case of a Tahoe Share for which the Share Election was made under Section 3.2(a)(ii) or deemed to have been made under Section 3.2(b) or 5.1(b), the Share Consideration, in each case subject to proration in accordance with Section 3.3, and in respect of the Tahoe Shares so transferred
(iii) the Tahoe Shareholder shall cease to be the holder thereof,
(iv) the name of the Tahoe Shareholder shall receive an option be removed from the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares,
(v) the Tahoe Shareholder shall be deemed to purchase shares have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(vi) the name of Parent Common Stock with substantially Pan American shall be added to the same terms and conditions register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof;
(including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if anyg) as were in effect each Tahoe Option outstanding immediately prior to the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a Replacement Option to acquire from Pan American such number of whole shares of Parent Common Stock Pan American Shares as is equal to the product of to: (xA) the number of Company Common Tahoe Shares that would be were issuable upon exercise of the Company Unexercised such Tahoe Option immediately prior to the Effective Time Time, multiplied by (yB) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common StockPan American Shares, and (ii) the per share at an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Pan American Share equal to the quotient equal to determined by dividing: (xX) the per share exercise price for per Tahoe Share at which such Company Unexercised Tahoe Option was exercisable immediately prior to the Effective Time divided Time, by (yY) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent cent. Except as set out above, the terms of each Replacement Option”). Each Company Unexercised Option shall be vested immediately following the same as the terms of the Tahoe Option exchanged therefor pursuant to any agreement evidencing the grant thereof prior to the Effective Time. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange. Therefore, in the event that the Replacement Option In-The-Money Amount in respect of a Tahoe Option would otherwise exceed the Tahoe Option In-The-Money Amount in respect of the Replacement Option, the number of Pan American Shares which may be acquired on exercise of the Replacement Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Replacement Option In-The-Money Amount in respect of the Replacement Option does not exceed the Tahoe Option In-The-Money Amount in respect of the Tahoe Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged;
(h) each Tahoe Share held by Pan American, including the Tahoe Shares acquired pursuant to Section 3.1(f) hereof, shall be transferred to Subco and in consideration therefor Subco shall issue to Pan American one fully paid and non- assessable common share of Subco for each Tahoe Share so transferred, and
(i) the name of Pan American shall be removed from the central securities register as a holder of Tahoe Shares;
(ii) Subco shall be recorded as the registered holder of the Tahoe Shares so transferred and shall be deemed to be the legal and beneficial owner of such Tahoe Shares; and
(iii) the amount added to the capital of the Subco common shares will be equal to the lesser of (A) the paid up capital (as such term is defined in the Tax Act) of the Tahoe Shares so transferred and (B) the fair market value of the Tahoe Shares so transferred;
(i) the capital of the Tahoe Shares shall be reduced to US$1.00 without any repayment of capital in respect thereof;
(j) Tahoe and Subco shall merge (the “Merger”) to form one corporate entity (the “Merged Company”) with the same effect as if they had amalgamated under Section 269 of the BCBCA except that the separate legal existence of Subco shall not cease and Subco shall survive the merger, and Pan American shall receive on the Merger one common share of the Merged Company in exchange for each Subco common share previously held and all of the issued and outstanding Tahoe Shares will be cancelled without any repayment of capital in respect thereof;
(k) without limiting the generality of Section 3.1(j), the separate legal existence of Tahoe shall cease without Tahoe being liquidated or wound up; Tahoe and Subco will continue as one company; and the properties and liabilities of Tahoe will become the properties and liabilities of Subco; and
(l) from and after the Effective Date, at the time of the step contemplated in Section 3.1(j):
(i) Subco as the Merged Company will own and hold all property of Subco and will own and hold all property of Tahoe and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such merger, and all liabilities and obligations of Tahoe and Subco, whether arising by contract or otherwise, may be enforced against Subco to the same percentage extent as if such obligations had been incurred or contracted by it;
(ii) Subco as the Merged Company will continue to be liable for all of the total liabilities and obligations of Tahoe and Subco;
(iii) all rights, contracts, permits and interests of Tahoe and Subco will continue as rights, contracts, permits and interests of Subco as the Merged Company as if Tahoe and Subco continued and, for greater certainty, the merger will not constitute a transfer or assignment of the rights or obligations of either of Tahoe or Subco under any such rights, contracts, permits and interests;
(iv) any existing cause of action, claim or liability to prosecution will be unaffected;
(v) a civil, criminal or administrative action or proceeding pending by or against either Subco or Tahoe may be continued by or against the Merged Company;
(vi) a conviction against, or ruling, order or judgment in favour of or against either Subco or Tahoe may be enforced by or against the Merged Company;
(vii) the name of the Merged Company shall be in the name of Subco;
(viii) the Merged Company shall be authorized to issue an unlimited number of common shares subject thereto as it was vested without par value;
(ix) the Notice of Articles and Articles of the Merged Company shall be substantially in the form of the Subco Notice of Articles and Articles;
(x) the first annual general meeting of the Merged Company will be held within 18 months from the Effective Date;
(xi) the registered office of the Merged Company shall be the registered office of Subco;
(xii) the first directors of the Merged Company following the Merger shall be the individuals who were directors of Subco immediately prior to the Effective Time;
(xiii) the first officers of the Merged Company following the Merger shall be the individuals, except to the extent such Company Unexercised Option (either by its terms or by the terms if any, who were officers of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent Subco immediately prior to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vixiv) The the aggregate capital of the common shares of the Merged Company Option Plan shall will be cancelledan amount equal to the paid up capital, as that term is defined in the Tax Act, attributable to the shares of Subco immediately prior to the Merger; and
(viixv) without any action the Merger shall not constitute an acquisition of property of Tahoe or Subco by the other pursuant to the purchase of property or as a result of the distribution or winding-up of Tahoe or Subco, it being expressly provided that the events provided for in this Section 3.1 will be deemed to occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by procedures related thereto may not be completed until after the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach Alexco In-the-Money Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall immediately and unconditionally vest, Class B Convertible Preferred Sharenotwithstanding the terms of the Alexco Option Plan and shall, Class C Convertible Preferred Share without any further action by or on behalf of any Alexco Optionholder, be deemed to be assigned and Company Common Share transferred by such Alexco Optionholder (free and clear of all Liens) to Alexco for cancellation in exchange for the Option Consideration. The Alexco Shares comprising the Option Consideration will be issued to such Alexco Optionholder as fully paid and non-assessable shares in the capital of Alexco;
(b) each Alexco Out-of-the-Money Option outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any Alexco Optionholder, be cancelled without any payment in respect thereof;
(i) each Alexco Optionholder shall cease to be a holder of such Alexco Options, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco Options shall be terminated and shall be of no further force and effect;
(d) each Alexco DSU outstanding immediately prior to the Effective Time shall be immediately and unconditionally vest, notwithstanding the terms of the Alexco DSU Plan and shall, without any further action by or on behalf of the Alexco DSU Holder thereof, be deemed to be irrevocably assigned and transferred by such Alexco DSU Holder to Parent Alexco (free and clear of all Liens) in exchange for, in each case, that number of shares of Parent Common Stock as determined by the board of directors of Alexco in accordance with the formula set out on Exhibit A attached hereto.Alexco DSU Plan, either a cash payment or the number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco DSU. Any such Alexco Shares will be issued to such Alexco DSU Holder as fully paid and non-assessable shares in the capital of Alexco; provided that no share certificates shall be issued with respect to such shares;
(b) Upon the transfer of all Company Shares to Parent:
(ie) each holder of such Company Shares Alexco DSU Holder shall cease to be the a holder of such Company Shares and Alexco DSUs, (ii) each such holder’s name shall be removed from the each applicable securities register of Company Shares;
(ii) legal maintained by Alexco, and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded agreements relating to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Alexco DSUs shall be terminated as of the Closing and shall be of no further force and effect;
(f) each Alexco RSU outstanding immediately prior to the Effective Time shall immediately and unconditionally vest, notwithstanding the terms of the Alexco RSU Plan and shall, without any further action by or on behalf of the Alexco RSU Holder thereof, be deemed to be assigned and transferred by such Alexco RSU Holder to Alexco (free and clear of all Liens) in exchange for the number of Alexco Shares equal to the number of Alexco Shares a holder is entitled to under each Alexco RSU less that number of Alexco Shares with a fair market value equal to the amount of required withholding tax rounded up to the nearest Alexco Share. The Alexco Shares will be issued to such Alexco RSU Holder as fully paid and non-assessable shares in the capital of Alexco; provided that no share certificates shall be issued with respect to such shares;
(i) each Alexco RSU Holder shall cease to be a holder of such Alexco RSUs, (ii) each such holder’s name shall be removed from each applicable register maintained by Alexco, and (iii) all agreements relating to the Alexco RSUs shall be terminated and shall be of no further force and effect;
(h) each Dissenting Shareholder shall transfer to Hecla all of the Dissent Shares held (free and clear of all Liens), without any further act or formality on its part, and in consideration therefor, Hecla shall issue to the Dissenting Shareholder a debt- claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so transferred
(i) the Dissenting Shareholder shall cease to be the holder thereof,
(ii) the name of the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Alexco in respect of the Alexco Shares,
(iii) the Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(iv) the name of Hecla shall be added to the register maintained by or on behalf of Alexco in respect of the Alexco Shares as the holder thereof; and
(i) each Alexco Shareholder shall transfer to Hecla (free and clear of all Liens) each whole Alexco Share held (other than any Alexco Shares held by Hecla immediately before the Effective Time or acquired by Hecla from a Dissenting Shareholder under Section 3.1(h)), including the Alexco Shares issued pursuant to Section 3.1(d) or Section 3.1(f) in exchange for the Consideration for each Alexco Share held, and
(i) the Alexco Shareholder shall cease to be the holder thereof,
(ii) the name of the Alexco Shareholder shall be removed from the register maintained by or on behalf of Alexco in respect of the Alexco Shares,
(iii) the Alexco Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(iv) the name of Hecla shall be added to the register maintained by or on behalf of Alexco in respect of the Alexco Shares as the holder thereof; it being expressly provided that the events provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, Time the following shall transactions will occur and shall be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company LVL Common Share outstanding immediately prior in respect of which a registered LVL Shareholder has exercised Dissent Rights and for which the registered LVL Shareholder is ultimately entitled to the Effective Time be paid fair value (each a “Dissent Share”) shall be and be deemed repurchased by LVL for cancellation in consideration for a debt-claim against LVL to be irrevocably transferred to Parent in exchange for, in each case, that number paid the fair value of shares of Parent Common Stock as determined such Dissent Share in accordance with the formula set out on Exhibit A attached hereto.Article 5 of this Plan of Arrangement and such Dissent Share shall thereupon be cancelled;
(b) Upon the LVL shall transfer approximately $25,000 in cash to each LVL Subsidiary;
(c) The authorized share structure of all Company Shares to ParentLVL will be reorganized and altered by:
(i) renaming and redesignating all of the issued and unissued Common Shares as “Class A common shares without par value” and amending the special rights and restrictions attached to those shares to provide the holders thereof with two votes in respect of each holder of such Company Shares shall cease to be share held, being the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company “LVL Class A Shares;”; and
(ii) legal creating a new class consisting of an unlimited number of “common shares without par value” with terms and beneficial title special rights and restrictions identical to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register those of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except being the “New Common Shares”;
(d) The Company’s Notice of Articles shall be amended to reflect the alterations in Section 2.1(d);
(e) Each issued and outstanding LVL Class A Share outstanding on the Distribution Record Date (as defined below) shall be exchanged for:
(i) one New Common Share;
(ii) (a) such number of Kobe Common Shares as is equal to the extent product of the Exchange Ratio and the LVL Common Shares held at the Record Date; and (b) such number of GMR Common Shares as is equal to the product of the Exchange Ratio and the LVL Common Shares held at the Record Date;
(f) The holders of the LVL Class A Shares will be removed from the central securities register of LVL as the holders of such and will be added to the central securities register of LVL as the holders of the number of New Common Shares that they have received on the exchange set forth in this Section 2.1(f), and the Kobe Common Shares and the GMR Common Shares transferred to the then holders of the LVL Class A Shares will be registered in the name of the former holders of the LVL Class A Shares and the Company Unexercised Option will provide Kobe and GMR and its registrar and transfer agent notice to make the appropriate entries in the central securities register of Kobe and GMR, respectively;
(either by its terms or by g) all of the terms issued LVL Class A Shares shall be cancelled with the appropriate entries being made in the central securities register of another Contract) provides LVL, and the aggregate paid-up capital (as that term is used for acceleration purposes of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, the Tax Act of the New Common Shares will be subject equal to further adjustment to reflect any stock split, division or subdivision that of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent the LVL Common Shares immediately prior to the Effective Time. The exercise price under Time less the fair market value of the Kobe Common Shares and GMR Common Shares distributed pursuant to Section 2.1(f) of the Plan of Arrangement;
(h) the Notice of Articles of the Company shall be amended to reflect the alterations in Section 2.1(f) and Section 2.1(g).
(i) LVL shall distribute to each Company Unexercised Option, LVL Warrantholder the number of shares for which such Company Unexercised Option is exercisable Kobe Warrants and GMR Warrants equal to the product of the number of LVL Warrants held and the terms Exchange Ratio (the “Warrant Distribution”), provided that:
(i) each Kobe Warrant shall entitle the holder thereof to purchase from Kobe one Kobe Common Share for every LVL Common Share that could be purchased under the LVL Warrant held by such LVL Warrantholder and conditions that each Kobe Warrant will have an exercise price per Kobe Common Share (rounded up to the nearest whole cent) equal to the exercise price of exercise each such LVL Warrant and the same expiry date as the expiry date of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawLVL Warrant;
(viii) The Company each GMR Warrant shall entitle the holder thereof to purchase from GMR one GMR Common Share for every LVL Common Share that could be purchased under the LVL Warrant held by such LVL Warrantholder and that each GMR Warrant will have an exercise price per GMR Common Share (rounded up to the nearest whole cent) equal to the exercise price of each such LVL Warrant and the same expiry date as the expiry date of such LVL Warrant;
(j) LVL shall distribute to each LVL Option Plan Holder the number of Kobe Options and GMR Options equal to the product of the number of LVL Options held and the Exchange Ratio (the “Option Distribution”), provided that:
(i) each Kobe Option shall entitle the holder thereof to purchase from Kobe one Kobe Common Share for every LVL Common Share that could be cancelledpurchased under the LVL Option held by such LVL Warrantholder and that each Kobe Option will have an exercise price per Kobe Common Share (rounded up to the nearest whole cent) equal to the exercise price of each such LVL Option and the same expiry date as the expiry date of such LVL Option;
(ii) each GMR Option shall entitle the holder thereof to purchase from GMR one GMR Common Share for every LVL Common Share that could be purchased under the LVL Option held by such LVL Option Holder and that each GMR Option will have an exercise price per GMR Common Share (rounded up to the nearest whole cent) equal to the exercise price of each such LVL Option and the same expiry date as the expiry date of such LVL Option; and
(viik) without any action on All securities of the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued LVL Subsidiaries held by the Company (the “Warrant”), the Warrant LVL shall be terminated as of the Closing and shall be of cancelled for no further force or effectconsideration.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following events or transactions shall occur and shall be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach Lexam VG Gold Share held by a Lexam VG Gold Dissenting Shareholder shall be deemed to be transferred by the holder thereof, Class B Convertible Preferred Sharewithout any further act or formality on its part, Class C Convertible Preferred free and clear of all liens, claims and encumbrances, to ▇▇▇▇▇▇ Mining, in consideration for a claim against ▇▇▇▇▇▇ Mining in an amount determined and payable in accordance with Article 4, and the name of such holder will be removed from the central securities register as a holder of Lexam VG Gold Shares and ▇▇▇▇▇▇ Mining shall be recorded as the registered holder of the Lexam VG Gold Shares so transferred and shall be deemed to be the legal owner of such Lexam VG Gold Shares;
(b) each Lexam VG Gold Share outstanding immediately prior to the Effective Time held by a Lexam VG Gold Shareholder (other than any Excess Controlled VG Gold Shares and Company Common other than any Lexam VG Gold Shares held by ▇▇▇▇▇▇ Mining or any Lexam VG Gold Dissenting Shareholder) shall be transferred by the holder thereof to ▇▇▇▇▇▇ Mining in exchange for the Arrangement Consideration, and ▇▇▇▇▇▇ Mining shall be deemed to be the legal and beneficial owner thereof, free and clear of any liens, claims or encumbrances, subject to Article 5;
(c) each Excess Controlled VG Gold Share outstanding immediately prior to the Effective Time shall be and be deemed transferred by the holder thereof to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent▇▇▇▇▇▇ Mining:
(i) each holder of such Company Shares shall cease if the ▇▇▇▇▇▇ Mining Meeting occurs prior to be the holder of such Company Shares Effective Time and such holder’s name shall be removed from the applicable securities register of Company Shares▇▇▇▇▇▇ Mining Shareholder Approval is obtained, in exchange for the Arrangement Consideration;
(ii) legal if the ▇▇▇▇▇▇ Mining Meeting occurs prior to the Effective Time and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall▇▇▇▇▇▇ Mining Shareholder Approval is not obtained, in lieu of such fraction of a share, be paid exchange for an amount in cash the dollar amount (rounded equal to the nearest whole cent), without interest, determined by multiplying such fraction Arrangement Consideration Factor multiplied by the closing price of a share of Parent Common Stock ▇▇▇▇▇▇ Mining Shares on the Nasdaq Market NYSE on the last trading day prior to the Closing Date;Effective Time; or
(iviii) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, if the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately ▇▇▇▇▇▇ Mining Meeting has not occurred prior to the Effective Time, except in exchange for the fraction of one (1) Subscription Receipt equal to the extent such Company Unexercised Option one (either by its terms or 1) multiplied by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawArrangement Consideration Factor;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on At the Effective Time, each of the following events shall occur and shall be deemed to occur sequentially in the following order set out below without any further authorization, act or formality of or by formality, in each case, effective as at one minute intervals starting at the CompanyEffective Time, Parent or any other Personexcept as indicated otherwise:
(a) Each Class A Convertible Preferred Shareeach Cash-Out RSU shall, Class B Convertible Preferred Shareby virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and without any required action on the part of the Company or the holder of such Cash-Out RSU, Class C Convertible Preferred be cancelled and the holder of such Cash-Out RSU shall be paid the RSU Consideration;
(b) each Cash-Out PRSU shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and without any required action on the part of the Company or any holder of such Cash-Out PRSU, be cancelled and the holder of such Cash-Out PRSU shall be paid the PRSU Consideration. For the avoidance of doubt, any portion of a PRSU that is forfeited at or prior to the Effective Time due to the failure to achieve applicable performance goals shall not be considered outstanding as of the Effective Time and shall not be treated as a Rollover PRSU or entitled to any PRSU Consideration;
(c) each SAR that is outstanding immediately prior to the Effective Time shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and without any required action on the part of the Company or any holder of such SAR, shall be cancelled and the holder of such SAR shall be paid the SAR Consideration, provided that in the case of a SAR that has an exercise price per Common Share that equals or exceeds the Consideration, such SAR shall be canceled upon the Effective Time for no consideration;
(d) the Employee Share Purchase Plan will terminate, in accordance with its terms, no later than immediately prior to and effective as of the Effective Time (but subject to the consummation of the Arrangement);
(e) all RSU Consideration, PRSU Consideration and SAR Consideration shall be paid, without interest and subject to withholding of all Taxes required by Applicable Law in accordance with Section 4.3, on behalf of the Company and each applicable Affiliate by the Depositary as promptly as practicable following, but in no event later than ten (10) Business Days after, the Effective Time (or such later time as may be required to comply with the provisions of Section 409A of the U.S. Tax Code);
(f) each Common Share outstanding immediately prior to the Effective Time held by a Dissenting Shareholder shall be deemed to have been assigned and transferred (free and clear of all Liens), without any further act or formality by or on behalf of any Dissenting Shareholder, to the Purchaser, in consideration for a debt claim against the Purchaser for an amount determined under Article 3, and:
(i) such Dissenting Shareholder shall cease to be the registered holder of such Common Share(s) and to have any rights as a Company Shareholder other than the right to be paid the amount determined under Article 3;
(ii) such Dissenting Shareholder's name shall be removed as the registered holder of such Common Share(s) from the applicable register of Company Shareholders maintained by or on behalf of the Company;
(iii) such Dissenting Shareholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Common Shares transferred pursuant to Section 2.3(f); and
(iv) the Purchaser shall be deemed to be irrevocably the transferee of such Common Shares free and clear of all Liens and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company;
(g) each Common Share that is issued and outstanding immediately prior to the Effective Time (other than a Common Share held by a Dissenting Shareholder in respect of which Dissent Rights have been duly and validly exercised under Section 2.3(f), the Company or any of its Subsidiaries, the Purchaser, the Parent or any Subsidiary of the Parent) shall be deemed to be assigned and transferred by the holder thereof to Parent the Purchaser in exchange forfor the Consideration, and:
(i) each registered holder of such Common Shares shall cease to be the registered holder thereof and to have any rights as a Company Shareholder other than the right to be paid the Consideration pursuant to this Section 2.3(g) and in accordance with this Plan of Arrangement; and
(ii) the name of each casesuch registered holder shall be removed from the register of the Company Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Common Shares free and clear of all Liens and shall be entered in the register of the Company Shareholders maintained by or on behalf of the Company; and
(h) each Rollover RSU shall, by virtue of the Arrangement in accordance with the terms of the applicable Equity Plan and the Arrangement Agreement and without any required action on the part of the Company or the holder of such Rollover RSU, be exchanged for a Parent RSU in respect of that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying share in accordance with Section 2.7 of the Company Disclosure Letter) equal to the product of (i) the total number of Common Shares subject to such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day Rollover RSU immediately prior to the Closing DateEffective Time, multiplied by (ii) the Equity Award Exchange Ratio. Except as expressly provided in this Section 2.3(h), the Arrangement Agreement or the Company Disclosure Letter, each Parent RSU shall be subject to substantially the same terms and conditions as applied to the corresponding Rollover RSU immediately prior to the Effective Time, including any “double-trigger” vesting provisions applicable to the Rollover RSUs pursuant to their terms as in effect on the date of this Plan of Arrangement;
(ivi) with respect to each share Rollover PRSU shall, by virtue of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled Arrangement in accordance with the terms of the applicable Equity Plan and the Arrangement Agreement and without any required action on the part of the Company Option Plan andor any holder of such Rollover PRSU, be exchanged for a Parent RSU in exchange for such cancellation, such holder shall receive an option to purchase respect of that number of shares of Parent Common Stock (rounded to the nearest whole share in accordance with Section 2.7 of the Company Disclosure Letter) equal to the product of (i) the total number of Common Shares subject to such Rollover PRSU immediately prior to the Effective Time determined in accordance with Section 2.7 of the Company Disclosure Letter, multiplied by (ii) the Equity Award Exchange Ratio. After the Effective Time, each such Parent RSU shall only be subject to time-vesting through the remainder of the originally scheduled performance period (or any later scheduled vesting date). Except as expressly provided in this Section 2.3(i), the Arrangement Agreement or the Company Disclosure Letter, each such Parent RSU shall be subject to substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior applied to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested corresponding Rollover PRSU immediately prior to the Effective Time, except including any “double-trigger” vesting provisions applicable to the extent such Company Unexercised Option (either by its Rollover PRSUs pursuant to their terms or by as in effect on the terms date of another Contract) provides for acceleration this Plan of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawArrangement;
(vij) The Company Option Plan shall the transfers, exchanges, cancellations and payments provided for in this Section 2.3 will be cancelled; and
(vii) without any action deemed to occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectprocedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, the following transactions shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share each Shareholder who has duly exercised the right of dissent as set forth in Article 3 shall be deemed to have transferred the PTI Common Shares held by such holder to PTI for cancellation and Company Common Share outstanding immediately such shares shall be cancelled and any Options held by such Shareholder which have not been exercised prior to the Effective Time time such Shareholder exercises such right of dissent shall be and be deemed to be irrevocably transferred to Parent PTI for no consideration and shall be cancelled and shall no longer be outstanding and in no case shall PTI or OSI be required to recognize such holders as Optionholders on and after the Effective Time and the names of such persons shall be deleted from the registers of Optionholders at the Effective Time;
(b) the Unanimous Shareholder Agreement shall be terminated and of no further force or effect;
(c) OSI shall acquire:
(i) all of the PTI Common Shares held by the Non-Accredited U.S. PTI Shareholder in exchange forfor a payment, in each caseUnited States dollars, that equal to the OSI IPO Price less underwriters' discounts and commissions applicable to the OSI IPO, multiplied by the Exchange Ratio multiplied by the number of shares PTI Common Shares held by the Non-Accredited U.S. PTI Shareholder; and
(d) OSI ULC shall acquire all of Parent the PTI Common Stock as determined Shares acquired by OSI pursuant to Section 2.1(c) hereof in accordance exchange for one common share in the capital of OSI ULC for each whole PTI Common Share;
(e) PTI Holdco shall acquire all of the PTI Common Shares acquired by OSI ULC pursuant to Section 2.1(d) hereof in exchange for one common share in the capital of PTI Holdco for each whole PTI Common Share;
(f) PTI and PTI Amalco shall be amalgamated pursuant to the Amalgamation Agreement to form New PTI;
(g) Upon the amalgamation of PTI and PTI Amalco to form New PTI:
(i) New PTI shall issue to PTI Holdco one Class A Common Share for each of its PTI Common Shares;
(ii) New PTI shall issue to PTI Holdco one Class A Common Share for each of its PTI Amalco Common Shares;
(iii) New PTI shall issue to 812375 one Class B Common Share for each of its PTI Common Shares;
(iv) New PTI shall issue to RJM one Class C Common Share for each of its PTI Common Shares;
(v) New PTI shall issue to each of the Shareholders other than 812375, RJM, PTI Holdco and holders of PTI Common Shares in respect of which rights of dissent have been exercised pursuant to Article 3 hereof and which have been cancelled pursuant to Section 2.1(a) hereof one Class D Common Share for each of their PTI Common Shares;
(vi) the amount added to the stated capital account maintained for the Class A Common Shares with respect to the formula set out on Exhibit Class A attached heretoCommon Shares issued pursuant to Sections 2.1(g)(i) and (ii) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares and the PTI Amalco Common Shares held by PTI Holdco;
(vii) the amount added to the stated capital account maintained for the Class B Common Shares with respect to the Class B Common Shares issued pursuant to Section 2.1(g)(iii) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares held by 812375;
(viii) the amount added to the stated capital account maintained for the Class C Common Shares issued pursuant to Section 2.1(g)(iv) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares held by RJM;
(ix) the amount added to the stated capital account maintained for the Class D Common Shares with respect to the Class D Common Shares issued pursuant to Section 2.1(g)(v) shall be equal to the paid-up capital, for the purposes of the ITA, of the PTI Common Shares other than (A) the PTI Common Shares held by PTI Holdco, 812375 and RJM and (B) PTI Common Shares in respect of which rights of dissent have been exercised pursuant to Article 3 hereof and which have been cancelled pursuant to Section 2.1(a) hereof.
(bh) The stated capital account maintained for (i) the Class B Common Shares shall be increased by a portion of the amount credited to New PTI's retained earnings account equal to [$6,794,359] and (ii) the Class C Common Shares shall be increased by a portion of the amount credited to New PTI's retained earnings account equal to [$3,903,303];
(i) The Articles of Incorporation of PTI Holdco shall be amended to add (i) the Exchangeable Shares to the authorized capital of PTI Holdco, (ii) the Exchangeable Share Provisions and (iii) certain other provisions, set forth in Exhibit B to the Combination Agreement and to delete the private company provisions;
(j) OSI and PTI Holdco shall execute and deliver the Support Agreement;
(k) OSI, PTI Holdco and the Trustee shall execute and deliver the Voting and Exchange Trust Agreement;
(l) PTI Holdco shall acquire all of the issued and outstanding Class B Common Shares from the holders thereof in exchange for the number of Exchangeable Shares equal to the Exchange Ratio for each whole Class B Common Share;
(m) PTI Holdco shall acquire all of the issued and outstanding Class C Common Shares from the holders thereof in exchange for the number of Exchangeable Shares equal to the Exchange Ratio for each whole Class C Common Share;
(n) PTI Holdco shall acquire all of the issued and outstanding Class D Common Shares from the holders thereof in exchange for the number of Exchangeable Shares equal to the Exchange Ratio for each whole Class D Common Share;
(o) The amount added to the stated capital account maintained for the Exchangeable Shares with respect to the Exchangeable Shares issued pursuant to Section 2.1(l) shall be equal to the paid up capital, for the purposes of the ITA, of the Class B Common Shares;
(p) The amount added to the stated capital account maintained for the Exchangeable Shares with respect to the Exchangeable Shares issued pursuant to Section 2.1(m) shall be equal to the paid up capital, for the purposes of the ITA, of the Class C Common Shares;
(q) The amount added to the stated capital account maintained for the Exchangeable Shares with respect to the Exchangeable Shares issued pursuant to Section 2.1(n) shall be equal to the paid up capital, for the purposes of the ITA, of the Class D Common Shares;
(r) Upon the transfer of all Company New PTI Shares referred to Parentin paragraphs (l), (m) and (n) above:
(i) each holder of such Company New PTI Shares shall cease to be such a holder, shall have his name removed from the register of holders of New PTI Shares and shall become a holder of such Company the number of fully paid Exchangeable Shares to which he is entitled as a result of the transfer referred to above and such holder’s 's name shall be removed from added to the applicable securities register of Company Shares;holders of Exchangeable Shares accordingly; and
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be PTI Holdco shall become the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register all of the Company as the sole shareholder thereof;New PTI Shares so transferred.
(iiis) no fractional shares of Parent Common Stock OSI shall be issued in connection issue to and deposit with the ArrangementDepositary the Voting Share in consideration of the payment to OSI of US$1, to be thereafter held by the Depositary as trustee for and on behalf of, and no certificates or scrip for any such fractional shares shall be issued. Any holder the use and benefit of, the holders of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shallthe Exchangeable Shares, in lieu of such fraction of a share, be paid in cash accordance with the dollar amount Voting and Exchange Trust Agreement.
(rounded to the nearest whole cent)t) The then outstanding Options will, without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any further action on the part of Parentany Optionholder: (i) if applicable, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled vest in accordance with the terms and conditions of the Company Option Plan andAgreements, in exchange and (ii) be converted into or exchanged for such cancellation, such holder shall receive an option to purchase the number of shares of Parent OSI Common Stock with substantially determined by multiplying the same terms and conditions (including the terms and conditions number of any applicable stock option agreement or other document evidencing PTI Common Shares subject to such Company Option, if any) as were in effect immediately prior to Option at the Effective Time (including any repurchase rights or vesting provisionsby the Exchange Ratio, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number at an exercise price per share of whole shares of Parent OSI Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the price per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, and expressed in U.S. dollars. For the purposes of determining the exercise price per share of OSI Common Stock, the exercise price per share of PTI Common Shares subject to such Option shall be adjusted using the Canadian dollar exchange rate based upon the average of the noon buying rate expressed to the fourth decimal place for each of the Business Days in the Measurement Period as reported by the Bank of Canada. If the foregoing calculation results in a converted Option being exercisable for a fraction of a share of OSI Common Stock, then the number of shares of OSI Common Stock subject to such Option will be rounded up down to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation and the exercise price per whole share of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective TimeOSI Common Stock will be as determined above. The exercise price obligations of PTI under each Company Unexercised Optionthe Options as so converted shall be assumed by OSI and OSI shall be substituted for PTI under the Option Agreements. Except as provided in this paragraph (d), the number of shares for which such Company Unexercised Option is exercisable term and the all other terms and conditions of exercise of such Company Unexercised Option shall be determined the Options in such manner so as effect immediately prior to comply giving effect to the greatest extent possible with Subsection 7(1.4Arrangement shall govern the Options.
(u) PTI Holdco Sub shall acquire all of the Canadian Tax Act issued and outstanding New PTI Shares from PTI Holdco in exchange for an equal number of common shares in the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part capital of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectPTI Holdco Sub.
Appears in 1 contract
Sources: Combination Agreement (Oil States International Inc)
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur consecutively in the following order order, each occurring five minutes following completion of the previous event without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharenotwithstanding the terms of the Shareholder Rights Plan, Class B Convertible Preferred Share, Class C Convertible Preferred Share the Shareholder Rights Plan shall be terminated and Company Common Share outstanding immediately prior all rights issued pursuant to the Effective Time Shareholder Rights Plan shall be and be deemed to be irrevocably transferred to Parent cancelled without any payment in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.respect thereof;
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name Dissent Share shall be removed from transferred by such Dissenting Shareholder to Purchaser (free and clear of any Liens) in accordance with, and for the applicable securities register of Company Sharesconsideration contemplated in, Article 4;
(iic) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately extent not exercised prior to the Effective Time, except shall be deemed terminated without any payment in respect thereof;
(d) the Effective Date shall be deemed to be the extent vesting date for all of the then issued and outstanding Company RSUs, and the Company shall allot and issue to each Company RSU Holder such number of Company Unexercised Option (either by its terms or by Shares as are due to such holder under the terms of another Contractsuch RSUs and thereafter (i) provides for acceleration the Company Incentive Plans will terminate and none of vesting thereof. Each the former holders of Company Unexercised Option shallRSUs or Company Options shall have any rights, liabilities or obligations in accordance respect of the Company Incentive Plans and (ii) the Company RSU Holders will be treated in all respects as Company Shareholders with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent respect to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as Shares issued pursuant to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawthis Section 3.1(d);
(vie) The the following shall occur and be deemed to occur concurrently:
(i) in consideration for the Consideration issued or paid to the Company Option Plan Shareholders by Parent for the benefit of Purchaser in Subsection 3.1(e)(iii), Purchaser shall issue to Parent a number of common shares of Purchaser with an aggregate fair market value equal to the fair market value of such Consideration;
(ii) an amount equal to the fair market value of the Consideration issued or paid to the Company Shareholders by Parent for the benefit of Purchaser in Subsection 3.1(e)(iii) shall be cancelledadded to the stated capital account of Purchaser in respect of the common shares of Purchaser issued to Parent in Subsection 3.1(e)(i); and
(viiiii) without Purchaser shall purchase all of the issued and outstanding Company Shares for the Consideration (to be issued or paid directly by Parent) and each Company Share (other than any action on Dissent Share) shall be transferred to Purchaser (free and clear of any Liens) in exchange for:
(A) the part of Parent, Share Consideration to be issued directly by Parent to the Company Shareholder for the benefit of Purchaser; or
(B) the Cash Consideration to be issued or paid directly by Parent to the Company Shareholder for the benefit of Purchaser, in each case in accordance with the election or deemed election of such Company Shareholder pursuant to Section 3.2, in each case, subject to proration in accordance with Section 3.3;
(f) with respect to each Company Share transferred in accordance with Section 3.1(b) or Section 3.1(e):
(i) the registered holder thereof shall cease to be the registered holder of such Company Share and shall cease to have any rights in respect of such Company Share and the name of such registered holder shall be removed from the register of Company Shareholders as of the time of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Company Share; and
(iii) Purchaser will be the holder of that certain warrant to purchase all of the outstanding Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing time of transfer prescribed in Section 3.1(b) or Section 3.1(e), as applicable and the central securities register of Company shall be revised accordingly and Purchaser shall be entitled to all of no further force or effectthe rights and privileges attached to the Company Shares.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, except as noted below, the following shall occur and shall be deemed to occur in the following order order, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company All Common Share outstanding immediately prior to the Effective Time Shares held by Dissenting Shareholders shall be and be deemed to have been transferred (free and clear of all Liens) to the Company; and
(i) such Dissenting Shareholders shall cease to be irrevocably transferred the holders of such Common Shares and to Parent in exchange for, in each case, that number of shares of Parent have any rights as Shareholders other than the right to be paid the fair value for such Common Stock Shares as determined in accordance with the formula set out in Article 4;
(ii) the name of each such Dissenting Shareholder shall be removed as a Shareholder from the registers of Shareholders maintained on Exhibit A attached heretoor on behalf of the Company; and
(iii) such tranferred Common Shares will be then be redeemed and cancelled by the Company.
(b) Upon the transfer of all Company Shares Subject to Parent:
Section 3.3, each outstanding Common Share (iother than those held by Dissenting Shareholders) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be assigned and transferred (free and clear of all Liens) to Mirati in exchange for the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofConsideration;
(iiic) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in In accordance with the terms of the Company Stock Option Plan, any Company Option that has not been duly exercised prior to the Effective Time, whether vested or unvested, shall, by virtue of this Plan andof Arrangement and without any further action of the Company or Mirati, in exchange for such cancellation, such holder shall receive represent an option (a “Mirati Option”) to purchase shares that number of Parent Mirati Shares equal to the number of Common Stock with substantially Shares the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect Option was exerciseable for immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely Date divided by 50 for a number of whole shares of Parent Common Stock an exercise price per Mirati Share equal to the product exercise price per share of (x) the number of such Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time Date multiplied by (y) 50, or such other proportionate adjustments to ultimately reflect the Option Exchange RatioConsideration as are required, rounded down given the discretion of the Board to determine the nearest whole number Consideration. The term to expiry, conditions to and manner of shares of Parent Common Stockexercising, vesting schedule and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise all other terms and conditions of such Company Unexercised Option will otherwise be unchanged, and any document or agreement previously evidencing a Company Option shall thereafter evidence and be deemed to evidence such Mirati Option;
(d) In accordance with the terms of the Company Warrants, any Company Warrant that has not been duly exercised prior to the Effective Time shall, by virtue of this Plan of Arrangement and without any further action of the Company or Mirati, represent a warrant (a “Mirati Warrant”) to purchase that number of Mirati Shares equal to the quotient equal to (x) number of Common Shares the per share exercise price Company Warrant was exerciseable for such Company Unexercised Option immediately prior to the Effective Time Date divided by (y) the Option Exchange Ratio, rounded up 50 for an exercise price per Mirati Share equal to the nearest whole cent (a “Parent Replacement Option”). Each exercise price per share of such Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Warrant immediately prior to the Effective TimeDate multiplied by 50, except or such other proportionate adjustments to ultimately reflect the extent such Company Unexercised Option (either by its terms or by Consideration as are required, given the terms discretion of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject the Board to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to determine the Effective TimeConsideration. The exercise price under each Company Unexercised Optionterm to expiry, the number conditions to and manner of shares for which such Company Unexercised Option is exercisable exercising, vesting schedule and the all other terms and conditions of exercise of such Company Unexercised Option Warrant will otherwise be unchanged, and any document or agreement previously evidencing a Company Warrant shall thereafter evidence and be determined in deemed to evidence such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawMirati Warrant;
(vie) The Company Option Plan 2011 Securities Purchase Agreements shall be cancelleddeemed to be amended such that by virtue of the Plan of Arrangement and without any further action of the Company, Mirati or the investor that is a party to such agreement: (i) the 2011 Pre-Emptive Rights shall represent a pre-emptive right (the “2011 Mirati Pre-Emptive Right”) to acquire securities of Mirati; (ii) all references to the Company and Common Shares in the 2011 Securities Purchase Agreement in relation to the 2011 Pre-Emptive Rights shall be deemed to be references to Mirati and Mirati Shares (but all other terms and conditions of the 2011 Pre-Emptive Rights shall otherwise be unchanged), and (iii) any 2011 Securities Purchase Agreement previously evidencing such 2011 Pre-Emptive Rights shall thereafter evidence and be deemed to evidence 2011 Mirati Pre-Emptive Rights; and
(viif) The Securities Purchase Agreements shall be deemed to be amended such that by virtue of this Plan of Arrangement and without any further action on of the part of ParentCompany, the Company Mirati or the holder investor that is a party to such agreement:
(i) the Pre-Emptive Rights shall represent a pre-emptive right (“Mirati Pre-Emptive Right”) to acquire securities of that certain warrant Mirati;
(ii) the Additional Rights shall represent a right (“Mirati Additional Right”) to purchase Company Common Shares dated as acquire the securities of October 5Mirati not otherwise purchased pursuant to the 2011 Mirati Pre-Emptive Rights or Mirati Pre-Emptive Rights;
(iii) the right of Tavistock Life Sciences and ▇▇▇▇▇ Brothers Life Sciences, 2007 issued by L.P contained in the Securities Purchase Agreement to each appoint an observer and nominate one director to the board of the Company (collectively, the “WarrantBoard Rights”) shall represent a right for each to appoint an observer and nominate one director to the board of Mirati (“Mirati Board Rights”); and all references to the Company and Common Shares in the Securities Purchase Agreement applicable to the Pre-Emptive Rights, the Warrant Additional Rights and Board Rights shall be terminated as deemed to be references to Mirati and Mirati Shares (but all other terms and conditions of the Closing Pre-Emptive Rights, Additional Rights and Board Rights shall otherwise be of no further force or effectunchanged), respectively, and any Securities Purchase Agreement previously evidencing such rights shall thereafter evidence and be deemed to evidence Mirati Pre-Emptive Rights, Mirati Additional Rights and Mirati Board Rights.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further authorization, act or formality required on the part of or by any person, in each case effective as at five minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach ProMed Share shall be deemed to be transferred to FCR (free and clear of any Liens, Class B Convertible Preferred Sharecharges and encumbrances of any nature whatsoever) and FCR shall be deemed to have acquired all of GAA’s rights and interest in and to the ProMed Debt, Class C Convertible Preferred in consideration for the issuance of the Consideration Shares to GAA;
(b) simultaneously:
(i) each GAA Share (other than those already owned by Gazit Maple or any GAA Shares held by a Dissenting Shareholder) shall be deemed to be transferred to Gazit Maple (free and clear of any Liens, charges and encumbrances of any nature whatsoever) in exchange for an Acquisition Promissory Note and the Cash Consideration, subject to Article 4 hereof;
(ii) each GAA Share in respect of which the GAA Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to Gazit Maple (free and clear of any Liens, charges and encumbrances of any nature whatsoever) in accordance with Article 4 hereof;
(c) with respect to each GAA Share transferred and assigned in accordance with Subsection 3.1(b) hereof and subject, where applicable, to Article 4 hereof:
(i) the registered holder thereof shall cease to be the registered holder of such GAA Share and Company Common the name of such registered holder shall be removed from the register of GAA Shareholders as of the Share Transfer Time;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such GAA Share in accordance with Subsection 3.1(b) hereof; and
(iii) Gazit Maple will be the holder of all of the outstanding GAA Shares and the register of GAA Shareholders shall be revised accordingly;
(d) each GAA Option that remains unvested immediately prior to the Effective Time shall be deemed to be vested and exercisable in full immediately prior to the Effective Time, and each GAA Option outstanding immediately prior to the Effective Time shall be deemed to be transferred to GAA (free and clear of any Liens, charges and encumbrances of any nature whatsoever) and cancelled in exchange for a cash payment equal to the GAA Option Consideration for each GAA Share subject to such GAA Option;
(e) each GAA DSU outstanding immediately prior to the Effective Time shall be deemed to be irrevocably transferred to Parent GAA (free and clear of any Liens, charges and encumbrances of any nature whatsoever) and redeemed in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with for a cash payment equal to the formula set out on Exhibit A attached hereto.GAA DSU Consideration;
(bf) Upon with respect to the transfer of all Company Shares to ParentGAA Warrants, simultaneously:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then 2010 Warrant outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including other than 2010 Warrants owned by Gazit Maple) shall be deemed to be transferred to GAA (free and clear of any repurchase rights or vesting provisionsLiens, if applicable), except that (icharges and encumbrances of any nature whatsoever) each Company Unexercised Option will be exercisable (or will become exercisable and cancelled in accordance with its terms) solely exchange for a number of whole shares of Parent Common Stock cash payment equal to the product of 2010 Warrant Consideration for each GAA Share subject to such ▇▇▇▇ ▇▇▇▇▇▇▇; and
(xii) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option each ▇▇▇▇ ▇▇▇▇▇▇▇ outstanding immediately prior to the Effective Time multiplied (other than 2011 Warrants owned by Gazit Maple) shall be deemed to be transferred to GAA (yfree and clear of any Liens, charges and encumbrances of any nature whatsoever) and cancelled in exchange for a cash payment equal to the 2011 Warrant Consideration for each GAA Share subject to such ▇▇▇▇ ▇▇▇▇▇▇▇;
(g) with respect to each GAA Warrant, GAA Option or GAA DSU transferred and assigned in accordance with Subsection 3.1(d), Subsection 3.1(e) or Subsection 3.1(f) hereof:
(i) the registered holder thereof shall cease to be the registered holder of such GAA Warrant, GAA Option Exchange Ratioor GAA DSU, rounded down to as the nearest whole number of shares of Parent Common Stockcase may be, and the name of such registered holder shall be removed from the respective registers of GAA Warrantholders, Optionholders and DSU holders as of the time the transfer under Subsection 3.1(d), Subsection 3.1(e) or Subsection 3.1(f) hereof, as the case may be, is completed; and
(ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option registered holder thereof shall be vested immediately following deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such GAA Warrant, GAA Option or GAA DSU, as the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shallcase may be, in accordance with its termsSubsection 3.1(d), be subject to further adjustment to reflect any stock splitSubsection 3.1(e) or Subsection 3.1(f) hereof, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawapplicable;
(vih) The Company the GAA Stock Option Plan, GAA DSU Plan and GAA RSU Plan shall each be cancelled; andterminated and none of GAA, Gazit Maple or any of their respective affiliates or successors shall have any liability in respect thereof;
(viii) without any action on the part stated capital account maintained by GAA in respect of Parent, the Company or the holder of that certain warrant to purchase Company Common GAA Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing reduced to $1.00;
(j) GAA and Gazit Maple shall be of no further force or effect.amalgamated and continued as one corporation under the OBCA to form Gazit Amalco in accordance with the following:
Appears in 1 contract
Arrangement. Commencing on 3.1 The Arrangement involves a number of steps, including the Effective Timefollowing, the following shall occur and shall which will be deemed to occur sequentially in the following order set out below without any further authorization, act or formality formality, except as otherwise expressly provided: Transfer of or by the Company, Parent or any other Person:Benachee Assets
(a) Each Class A Convertible Preferred ShareBenachee shall sell, Class B Convertible Preferred Sharetransfer, Class C Convertible Preferred Share assign and Company Common Share outstanding immediately prior convey to NewCo, on an "as is where is" basis and without recourse to Benachee whatsoever, the Effective Time shall be and be deemed Divested Assets for a purchase price equal to their fair market value, which is agreed to be irrevocably transferred to Parent in exchange for$31,060,759 and as consideration for the Divested Assets, NewCo shall assume the Assumed Obligations and, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:connection therewith,
(i) each holder ▇▇▇▇▇▇ shall release Benachee's obligations under the Intercompany Debt by the amount of the Assumed Intercompany Debt such Company Shares that Benachee's obligations in respect of the Intercompany Debt shall cease thereafter be limited to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company SharesRetained Intercompany Debt;
(ii) legal NewCo shall provide to AGII a guarantee of the AGII DIP Loan secured by a general security agreement of NewCo, such guarantee and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed general security agreement to be in substantially the transferee same form as the guarantee and legal and beneficial owner general security agreement of such Company Shares and will be entered in the applicable securities register Benachee forming part of the Company as the sole shareholder thereof;AGII DIP Loan Security; and
(iii) no fractional shares NewCo shall provide to CAZ a guarantee of Parent Common Stock shall the ▇▇▇▇▇▇ CAZ Debt secured by demand debenture and mortgage of NewCo, such guarantee, demand debenture and mortgage to be issued in connection with substantially the Arrangementsame form as the guarantee, demand debenture and no certificates or scrip for any such fractional shares shall be issued. Any holder mortgage of Company Shares who would otherwise be entitled to receive a fraction Benachee forming part of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing DateBenachee CAZ Debt Security;
(ivb) with respect Benachee shall repay that portion of the Retained Intercompany Debt equal to each share the Benachee Subordinated Note Principal Amount to ▇▇▇▇▇▇ by the issuance to ▇▇▇▇▇▇ of Parent Common Stock issued to a former holder of Company Sharesthe Benachee Subordinated Note, such that after such repayment the name of such holder Retained Intercompany Debt shall be entered in reduced to the register of holders of Parent Common Stock as the registered holder thereofRemaining Intercompany Debt;
(vc) without any action on ▇▇▇▇▇▇ shall sell, transfer, assign and convey the part of Parent, the Company or the holders of Company Options, except Benachee Subordinated Note to SubCo and as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price consideration for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal Benachee Subordinated Note, SubCo shall issue to ▇▇▇▇▇▇ the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawSubCo Note;
(vid) The Company Option Plan SubCo shall distribute all of its property, including, without restriction, the Benachee Subordinated Note, to Benachee, Benachee shall assume all of SubCo's liabilities, including, without restriction, the SubCo Note, after which SubCo shall be cancelled; anddissolved;
(viie) Benachee shall repay the SubCo Note to ▇▇▇▇▇▇ for its principal amount of $1.00 in cash;
(f) the provisions of the CCAA Approval Order declaring that Benachee is free and clear of all liabilities including, without any action on limitation, in all liabilities in respect of the part of ParentAssumed Obligations and the AGII DIP Loan Security, all liabilities to ▇▇▇▇▇▇, except the Company or Remaining Intercompany Debt, and all liabilities to CAZ including, without limitation, pursuant to the holder of that certain warrant to purchase Company Common Shares dated as of October 5Benachee CAZ Debt Security, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.effective;
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further authorization, act or formality required on the part of or by any Person, in each case effective as at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach Liquid Share (other than any Liquid Shares held by LBIX and any Liquid Shares in respect of which any Liquid Shareholder has validly exercised his, Class B Convertible Preferred Shareher or its Dissent Right) shall be deemed to be transferred to LBIX (free and clear of any Encumbrances) in exchange for the Consideration, Class C Convertible Preferred subject to Article 4 hereof;
(b) each Liquid Share in respect of which any Liquid Shareholder has validly exercised his, her or its Dissent Right shall be directly transferred and assigned by such Dissenting Shareholder to LBIX (free and clear of any Encumbrances) in accordance with Article 4 hereof;
(c) with respect to each Liquid Share transferred and assigned in accordance with Section 3.1(a) or Section 3.1(b) hereto:
(i) the registered holder thereof shall cease to be the registered holder of such Liquid Share and Company Common Share the name of such registered holder shall be removed from the register of Liquid Shareholders as of the Effective Time;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Liquid Shares in accordance with Section 3.1(a) or Section 3.1(b) hereto, as applicable; and
(iii) LBIX will be the holder of all of the outstanding Liquid Shares and the register of Liquid Shareholders shall be revised accordingly;
(d) in accordance with the certificates governing the terms and conditions of the Liquid Warrants, each holder of a Liquid Warrant outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction (and such holder shall accept), upon the exercise of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall's Liquid Warrants, in lieu of each Liquid Share to which such fraction of a shareholder was theretofore entitled, be paid in cash upon such exercise and for the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Sharessame aggregate consideration payable therefor, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock LBIX Shares equal to the product of of: (xi) the number of Company Common Liquid Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior subject to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Liquid Warrant immediately prior to the Effective Time, except ; and (ii) 0.6979. Each liquid Warrant shall continue to the extent such Company Unexercised Option (either be governed by its terms or by and be subject to the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and certificate governing the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledLiquid Warrant; and
(viie) without any action the exchanges, cancellations and transactions provided for in this Section 3.1 will be deemed to occur on the part of ParentEffective Date, notwithstanding certain procedures related thereto may not be completed until after the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Arrangement. Commencing on Subject to the terms hereof, commencing at the Effective Time, the following shall occur and shall be deemed to occur as more fully set forth in the following order without any further authorization, act or formality of or by the Company, Parent or any other PersonArrangement By-Law:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share 2.1.1 the Target Shares outstanding immediately prior to the Effective Time held by each holder thereof shall be transferred by the holder thereof to, and be deemed acquired by, Purchaser without any act or formality on the part of such holder or Purchaser, free and clear of any Liens, in exchange for such number of duly authorized, fully-paid and non-assessable Purchaser Shares equal to be irrevocably the product of the number of such Target Shares held by such holder multiplied by the Exchange Ratio;
2.1.2 with respect to each Target Share transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with Purchaser pursuant to Section 2.1.1;
2.1.2.1 the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of each such Company Shares Target Share shall cease to be the holder of such Company Shares Target Share and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title Target Shares with respect to such Company Shares will vest in Parent and Parent will be and Target Shares; and
2.1.2.2 Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Shares Target Share (free and will clear of any Liens) and shall be entered in the applicable securities register of the Company Target Shares as the sole shareholder registered holder thereof;; and
(iii) 2.1.2.3 no fractional shares of Parent Common Stock shall Purchaser Shares will be issued in connection with under the Arrangement, and no certificates or scrip for any such resulting fractional shares Purchaser Shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shallrounded down or up, in lieu of such fraction of a shareas appropriate, be paid in cash the dollar amount (rounded to the nearest closest whole cent)number, without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior it being understood for greater certainty that 0.5 Purchaser Shares shall be rounded down to the Closing Date;
(iv) closest whole number; with respect to each share of Parent Common Stock Purchaser Share issued to a former holder of Company SharesTarget Shares pursuant to Section 2.1.1, the name of such holder shall be entered in the register of holders of Parent Common Stock Purchaser Shares as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, 2.1.3 each Company outstanding Target Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately not exercised prior to the Effective Time (including “Unexercised Options”) shall, without any repurchase rights further action or vesting provisionsformality on the part of any holder of such Unexercised Option, if applicable), except be transferred by the holder thereof to Target in exchange for an option (a “Replacement Option”) to purchase that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock Purchaser Shares equal to the product of (x) the number of Company Common Target Shares that would be issuable upon exercise of the Company subject to such Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share . Such Replacement Option shall provide for an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Purchaser Share equal to the quotient equal to (x) the per share exercise price for per Target Share of such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio; provided, however, that in no circumstance shall the exercise price per Purchaser Share be less than $.01 and if the calculation results in an exercise price of less than $.01, the exercise price shall be deemed to be $.01 per Purchaser Share. If the foregoing calculation results in a Replacement Option (A) being exercisable for a fraction of a Purchaser Share, then the number of Purchaser Shares subject to such Replacement Option shall be rounded down to the next whole number of Purchaser Shares, or (B) having an exercise price per Purchaser Share that is a fraction of a cent, then the exercise price per Purchaser Share under such Replacement Option shall be rounded up to the nearest next whole cent (a “Parent cent. In addition, if required, the exercise price of each Replacement Option will be increased such that the excess, if any, of the aggregate fair market value of the Purchaser Shares subject to such Replacement Option immediately after the exchange over the aggregate exercise price under the Replacement Option does not exceed the excess, if any, of the aggregate fair market value of the Target Shares subject to the Target Stock Option Plan immediately before the exchange over the aggregate exercise price under such Target Stock Option Plan where all amounts are computed on the Effective Date. The term to expiry, conditions to and manner of exercising, vesting schedule and all other terms and conditions of such Replacement Option will be the same as the terms and conditions of such Unexercised Option”). Each Company Any document or agreement previously evidencing such Unexercised Option shall thereafter evidence and be vested immediately following deemed to evidence such Replacement Options;
2.1.4 the Target Stock Option Plan shall be cancelled;
2.1.5 effective from and after the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Time, each Target Warrant outstanding immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option time shall, in accordance with its termsthe Target Warrant Indenture, be subject entitle the holder thereof, at any time until the time of expiry and upon payment of the exercise price thereof, to further adjustment to reflect any stock split, division or subdivision purchase such number of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent duly authorized fully paid and non-assessable Purchaser Shares equal to the Effective TimeExchange Ratio. The exercise price under each Company Unexercised Optionterm to expiry, the number conditions to and manner of shares for which such Company Unexercised Option is exercisable exercising, vesting schedule and the all other terms and conditions of exercise of such Company Unexercised Option shall Target Warrant will continue to be determined governed by terms and conditions set forth in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of Target Warrant Indenture; and
2.1.6 the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Shareholder Rights Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Acquisition Agreement (Iamgold Corp)
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur in the following order as set out below without any further authorization, act or formality of or by formality, in each case effective as at five minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and each Company Option which was conditionally exercised pursuant to Section 2.7(1)(b) of the Arrangement Agreement shall be deemed to have been exercised for a Common Share pursuant to the terms of such Company Option, the Stock Option Plan and the conditional exercise procedures implemented in connection with Section 2.7(1)(b) of the Arrangement Agreement, less applicable withholdings;
(b) each Company Option outstanding immediately prior to the Effective Time (whether vested or unvested and, for greater certainty, not including those Company Options referenced in Section 2.3(a) above), notwithstanding the terms of the Stock Option Plan, shall be and be deemed to be irrevocably unconditionally vested and exercisable, and such Company Option shall, without any further action by or on behalf of a Company Optionholder, be deemed to be assigned and transferred by such holder to Parent the Company in exchange forfor a cash payment from the Company equal to the amount (if any) by which the Consideration exceeds the exercise price of such Company Option, in each caseless applicable withholdings, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.and such Company Option shall immediately be cancelled;
(b) Upon the transfer of all Company Shares to Parent:
(ic) each holder of such Company Shares Options shall cease to be the a holder of such Company Shares and Options, such holder’s 's name shall be removed from each applicable register and the applicable securities register Stock Option Plan, and all agreements relating to the Company Options shall be terminated and shall be of Company Sharesno further force and effect, and such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 2.3(b) at the time and in the manner specified in Article 4;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (id) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Warrant outstanding immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by notwithstanding the terms of another Contract) provides for acceleration of vesting thereof. Each the Company Unexercised Option Warrant, shall, in accordance with its termswithout any further action by or on behalf of a holder thereof, be subject deemed to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent be assigned and transferred by such holder to the Effective Time. The Company in exchange for a cash payment from the Company equal to the amount (if any) by which the Consideration exceeds the exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option Warrant, less applicable withholdings, and such Company Warrant shall immediately be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawcancelled;
(vie) The each holder of Company Option Plan Warrants shall cease to be a holder of such Company Warrants, such holder's name shall be cancelled; and
(vii) without any action on the part of Parentremoved from each applicable register, and all agreements relating to the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Warrants shall be terminated as of the Closing and shall be of no further force and effect, and such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to Section 2.3(d) at the time and in the manner specified in Article 4;
(f) each Common Share (including, for greater certainty, a Common Share issuable on the exercise of a Company Option under Section 2.3(a)) outstanding at the Effective Time, other than a Common Share held by a Dissenting Holder who has validly exercised his, her or effectits Dissent Right, shall be deemed to be assigned and transferred by the holder thereof to the Purchaser in exchange for the Consideration for each Common Share held;
(g) each Common Share in respect of which a holder of Common Shares has validly exercised his, her or its Dissent Right shall be directly assigned and transferred by such Dissenting Holder to the Purchaser (free and clear of all Liens) in accordance with Section 3.1; and
(h) the names of the holders of the Common Shares transferred to the Purchaser shall be removed from the applicable registers of holders of Common Shares, the holders of the Common Shares shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Common Shares in accordance with this Section 2.3, and the Purchaser shall be recorded as the registered holder of the Common Shares so transferred and shall be deemed the legal and beneficial owner thereof.
Appears in 1 contract
Arrangement. Commencing on Subject to the provisions of Article 4, commencing at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by notwithstanding that certain procedures related thereto may not be completed until after the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and JKR Shares held by Dissenting Shareholders will be deemed to have been transferred back to JKR and the Dissenting Shareholders will cease to have any rights as JKR Shareholders other than the right to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined paid fair value for their JKR Shares in accordance with the formula set out on Exhibit A attached hereto.Article 4;
(b) Upon each registered holder of JKR Shares, with the transfer exception of Dissenting Shareholders, will be deemed to exchange all Company of their JKR Shares for GSV Shares on the basis of one GSV Share for each one JKR Share held at the Effective Time;
(c) with respect to Parent:the JKR Shares exchanged pursuant to Section 3.1(b) (other than JKR Shares held by GSV and the Dissenting Shares):
(i) each holder the holders of such Company JKR Shares shall cease to be JKR Shareholders as of the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;Effective Time; and
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent GSV shall become the sole JKR Shareholder as at the Effective Time;
(d) each outstanding JKR Agent Warrant will be exchanged for a GSV Agent Warrant to purchase that number of GSV Shares equal to the number of JKR Shares issuable under the JKR Agent Warrant at a price equal to the exercise price under the JKR Agent Warrant and each JKR Agent Warrant shall thereafter be cancelled and cease to be outstanding. Save and except as agreed to by GSV and the holders of JKR Agent Warrants, the term to expiry, conditions to and manner of exercising, the status under applicable laws, and all other terms and conditions of the GSV Agent Warrants issued pursuant to this Section 3.1(d) will otherwise by unchanged from those contained in or otherwise applicable to the related JKR Agent Warrants;
(e) each outstanding JKR Special Warrant will be exchanged for a GSV Special Warrant to acquire, without payment of any additional consideration, that number of GSV SW Units equal to the number of JKR SW Units issuable under the JKR Special Warrant and each JKR Special Warrant shall thereafter be cancelled and cease to be outstanding. Save and except as agreed to by GSV and the holders of JKR Special Warrants, the expiry date, conditions to and manner of deemed exercise of, the status under applicable laws, and all other terms and conditions of the GSV Special Warrants issued pursuant to this Section 3.1(e) including the GSV Penalty Provision will otherwise by unchanged from those contained in or otherwise applicable to the related JKR Special Warrants;
(f) each GSV Special Warrant issued to the holders of JKR Special Warrants in exchange for their JKR Special Warrants pursuant to section 3.1(e) shall, subject to the GSV Penalty Provision, be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register exercised as of the Company as the sole shareholder thereofEffective Time into one GSV SW Unit, each GSV SW Unit consisting of one GSV Share and one GSV SW Warrant;
(iiig) no fractional shares of Parent Common Stock shall be issued in connection with each GSV SW Warrant will entitle the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled thereof to receive purchase one GSV Share at a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of $1.00 for a share period of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to two years from the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledDate; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Arrangement Agreement (Gold Standard Ventures Corp.)
Arrangement. Commencing on 2.2.1 At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality formality, provided that none of the following will occur or by be deemed to occur unless all of the Company, Parent or any other Personfollowing occurs:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately Immediately prior to the Effective Time Time, the Wedge Shares held by Dissenting Shareholders shall be and be deemed to have been surrendered to Wedge for cancellation, and such Dissenting Shareholders shall cease to be irrevocably transferred the holders of such Wedge Shares and to Parent have any rights as holders of such Wedge Shares other than the right to be paid the fair value for such Wedge Shares as set out in exchange forSection 3.1, in each caseand such Dissenting Shareholders’ names shall be removed as the holders of such Wedge Shares from the central securities register of Wedge for the Wedge Shares;
(b) Each outstanding Wedge Note shall be redeemed by Wedge at a redemption price equal to the principal amount owing under such Wedge Note and all applicable and unpaid interest thereon up to but excluding the Effective Date, that number such payment of shares the redemption price to be completed immediately upon completion of Parent Common Stock as determined the Private Placement;
(c) Each Wedge Note redeemed in accordance with the formula set out on Exhibit A attached hereto.foregoing Paragraph 2.2.1(b) shall be cancelled immediately following such redemption and the holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to cancel such Wedge Note in accordance with this Paragraph 2.2.1(c), including, for greater certainty, all consents and waivers regarding those negative covenants of Wedge contained in the Wedge Notes relating to, among others, a change in business, the redemption of securities, an amendment to articles, any continuation under other jurisdictions and transactions with related parties;
(bd) Upon the transfer of all Company Shares to Parent:
(i) each The holder of such Company Shares each Wedge Note shall cease to be the holder thereof and shall cease to have any rights as a holder or a former holder of such Company Shares Wedge Note, and all agreements, certificates and similar instruments relating to such holder’s name Wedge Note, including, for greater certainty, the intercreditor agreement and anti-dilution undertaking, each dated January 26, 2010, shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and shall be deemed to be the transferee cancelled and legal terminated and beneficial owner of such Company Shares and will be entered Wedge shall cease to have any liability in the applicable securities register of the Company as the sole shareholder respect thereof;
(iiie) no fractional shares Notwithstanding the terms of Parent Common Stock the Wedge Warrants, each Wedge Warrant shall be issued deemed to be surrendered and cancelled immediately and Wedge shall cease to have any liability in connection with the Arrangementrespect thereof, and no certificates or scrip for any such fractional shares the holder thereof shall be issued. Any holder of Company Shares who would otherwise be entitled deemed to receive a fraction of a share of Parent Common Stock (after aggregating have executed and delivered all fractional shares of Parent Common Stock issuable consents, releases, assignments and waivers, statutory or otherwise, required to cancel such holder) shall, Wedge Warrant in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole centaccordance with this Paragraph 2.2.1(e), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(ivf) with respect The holder of each Wedge Warrant shall cease to each share of Parent Common Stock issued be the holder thereof and shall cease to have any rights as a holder or a former holder of Company Sharessuch Wedge Warrant, and all agreements, certificates and similar instruments relating to such Wedge Warrant shall be and shall be deemed to be cancelled;
(g) Notwithstanding the name terms of the Wedge Stock Options and the Wedge Stock Option Plan, each Wedge Stock Option shall be deemed to be cancelled immediately and Wedge shall cease to have any liability in respect thereof, and the holder thereof shall be deemed to have executed and delivered all covenants, releases, assignments and waivers, statutory or otherwise, required to cancel such Wedge Stock Options in accordance with this Paragraph 2.2.1(g);
(h) The holder of each Wedge Stock Option shall cease to be the holder thereof and shall cease to have any rights as a holder or a former holder of such holder Wedge Stock Option, and all agreements, certificates and similar instruments relating to such Wedge Stock Option shall be entered and shall be deemed to be cancelled;
(i) The Wedge Stock Option Plan and any other agreements relating to the Wedge Stock Options shall be terminated and Wedge shall cease to have any liability in the register of holders of Parent Common Stock as the registered holder respect thereof;
(vj) without The issued and outstanding Wedge Shares be consolidated by a ratio of 20:1, with any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall resulting fractional shares to be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number Wedge Share (the “Consolidation”) and the central securities register of Wedge in respect of such shares shall be adjusted accordingly;
(k) Each Corporation Share outstanding will be exchanged by the holder thereof, without any further act or formality and free and clear of Parent Common Stockall liens, claims and encumbrances, for one fully paid and non-assessable Wedge Share, and the name of each such holder of Corporation Shares will be removed from the central securities register of the Corporation for the Corporation Shares and added to the central securities register of Wedge for the Wedge Shares, and Wedge shall be added to the central securities register of the Corporation for the Corporation Shares;
(l) All of the authorized and unissued Wedge Shares and Wedge Preference Shares shall be cancelled;
(m) The Corporation, now a wholly-owned subsidiary of Wedge, and Wedge shall amalgamate to form one corporation (“Amalco”) with the same effect as if they had amalgamated under Section 270 of the BCABC, in accordance with the following:
(i) the notice of articles of amalgamation and articles of Amalco shall be substantially in the form of the notice of articles and articles of Wedge, taking into account the transactions set forth herein;
(ii) the per share exercise price for Corporation Shares held by Wedge shall be cancelled without reimbursement of the shares capital represented thereby and the capital of Parent Common Stock issuable upon exercise Amalco shall be the same as the capital of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option Wedge immediately prior to the Effective Time divided by Amalgamation;
(yiii) the Option Exchange Ratioproperty, rounded up to rights and interests of Wedge and the nearest whole cent Corporation will be the property, rights and interests of Amalco;
(a “Parent Replacement Option”). Each Company Unexercised Option iv) Amalco shall be vested immediately following liable for the Effective Time as to the same percentage obligations of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable Wedge and the terms and conditions Corporation;
(v) any existing cause of exercise action, claim or liability to prosecution of such Company Unexercised Option Wedge or the Corporation shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawunaffected;
(vi) The Company Option Plan shall any legal proceeding being prosecuted or pending by or against either Wedge or the Corporation may be cancelled; andprosecuted, or its prosecution may be continued, as the case may be, by or against Amalco;
(vii) without any action on a conviction against, or ruling, order or judgment in favour or against either Wedge or the part Corporation may be enforced by or against Amalco;
(viii) Amalco’s name shall be Undur Tolgoi Minerals Inc.;
(ix) the board of Parentdirectors of Amalco shall consist of the following persons: Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
(x) the officers of Amalco shall consist of the following persons: Name Title ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ President and Chief Executive Officer ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Chief Financial Officer and Secretary
(xi) the first auditors of Amalco shall be ▇▇▇▇▇ & Young LLP, who shall hold office until he first annual meeting of Amalco following the amalgamation or until their successors are elected or appointed, and for the purposes of Section 220 of the BCABC, the Company or provisions of this section shall constitute the holder amalgamation agreement between Wedge and the Corporation.
2.2.2 Any transfer of that certain warrant securities pursuant to purchase Company Common Shares dated as this Plan of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Arrangement shall be terminated as free and clear of the Closing and shall be of no further force any liens, claims, encumbrances, charges, adverse interests or effectsecurity interests.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. 3.1 Commencing on at the Effective Time, each of the following events and transactions set out below shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharethe Renewables Shares held by Dissenting Shareholders shall be deemed to be, Class B Convertible Preferred Sharewithout any further act or formality by the holders thereof, Class C Convertible Preferred Share transferred to TransAlta (free and Company Common Share clear of all Liens), and:
(i) such Dissenting Shareholders shall cease to be the holders of such Renewables Shares and to have any rights as holders of such Renewables Shares other than the right to be paid fair value for such Renewables Shares as set out in Article 4;
(ii) such Dissenting Shareholders’ names shall be removed as the holders of such Renewables Shares from the registers of Renewables Shares maintained by or on behalf of Renewables; and
(iii) TransAlta shall be deemed to be the transferee of such Renewables Shares (free and clear of all Liens) and shall be entered into the register of Renewables Shares maintained by or on behalf of Renewables;
(b) notwithstanding the terms of the Renewables DSU Plan, any resolutions of the Renewables directors or any agreement, certificate or other instrument granting or confirming the grant of Renewables DSUs or representing Renewables DSUs:
(i) with respect to each Renewables DSU outstanding immediately prior to the Effective Time and held by a Non-US Renewables DSU Holder:
(A) the “Redemption Date” (as defined in the Renewables DSU Plan) of each such Renewables DSU shall be be, and shall be deemed to be, the effective time of this Section 3.1(b);
(B) each such Renewables DSU, shall be, and shall be irrevocably deemed to be, without any further action by or on behalf of a Non-US Renewables DSU Holder, assigned, transferred and surrendered by such Non-US Renewables DSU Holder to Parent Renewables (free and clear of all Liens) in exchange for, as elected or deemed to be elected in writing by each case, Non-US Renewables DSU Holder prior to the Effective Time:
(1) a number of Renewables Shares equal to that number of shares Renewables Shares subject to each Renewables DSU immediately prior to the Effective Time, and such Non-US Renewables DSU Holder shall be entered into the register of Parent Common Stock Renewables Shares maintained by or on behalf of Renewables, but the Non-US Renewables DSU Holder shall not be entitled to a certificate or other document representing the Renewables Shares issued in exchange for its Renewables DSUs and such Non-US Renewables DSU Holder shall be deemed for purposes of Section 3.2 to have elected to receive, in respect of each such Renewables Share received, the Renewables Share Consideration, subject to Sections 5.9 and 6.1; or
(2) a cash payment from Renewables equal to the Renewables Cash Consideration multiplied by that number of Renewables Shares subject to each Renewables DSU immediately prior to the Effective Time, less any amounts withheld pursuant to Article 6 and the Renewables DSU Plan; and
(ii) with respect to each Renewables DSU outstanding immediately prior to the Effective Time and held by a US Renewables DSU Holder:
(A) the “Redemption Date” (as determined defined in the Renewables DSU Plan) of each such Renewables DSU shall be, and shall be deemed to be, the date that is one day following the six month anniversary of the Effective Date;
(B) from and after the Effective Time, each such Renewables DSU shall, and shall be deemed to, without any further action by or on behalf of a US Renewables DSU Holder, represent a right to receive, as elected or deemed to be elected in writing by each US Renewables DSU Holder prior to the Effective Time, from Renewables on the Redemption Date as set forth in Section 3.1(b)(ii)(A):
(1) a number of Renewables Shares equal to that number of Renewables Shares subject to each such Renewables DSU immediately prior to the Effective Time and such US Renewables DSU Holder shall thereafter be deemed to have elected to receive on the Redemption Date as set forth in Section 3.1(b)(ii)(A), in respect of the right to receive each such Renewables Share, the Renewables Share Consideration, subject to Sections 5.9 and 6.1; or
(2) a cash payment equal to the Renewables Cash Consideration multiplied by that number of Renewables Shares subject to each such Renewables DSU immediately prior to the Effective Time, less any amounts withheld pursuant to Article 6 and the Renewables DSU Plan; and
(c) each Renewables Share held by a Renewables Shareholder (other than Renewables Shares held by TransAlta or any of its affiliates and other than Renewables Shares held by Dissenting Shareholders) shall be and shall be deemed to be, without any further act or formality by or on behalf of the Renewables Shareholder transferred to TransAlta (free and clear of all Liens) in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon election or deemed election of such Renewables Shareholder pursuant to Section 3.2, as adjusted by Section 3.3, if applicable, in exchange for the transfer of all Company Shares to ParentRenewables Cash Consideration or the Renewables Share Consideration, and upon such exchange:
(i) each holder the holders of such Company Renewables Shares shall cease to be the holder holders thereof and to have any rights as holders of such Company Renewables Shares and other than the right to receive Renewables Share Consideration or Renewables Cash Consideration, as applicable, for each such holder’s name shall be removed from the applicable securities register Renewables Share in accordance with this Plan of Company SharesArrangement;
(ii) legal and beneficial title to such Company holders’ names shall, in respect of the Renewables Shares, be removed from the register of Renewables Shares will vest in Parent and Parent will be and maintained by or on behalf of Renewables;
(iii) TransAlta shall be deemed to be the transferee and legal and beneficial owner of such Company Renewables Shares (free and will clear of all Liens) and shall, in respect of such Renewables Shares, be entered in into the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares Renewables Shares maintained by or on behalf of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;Renewables; and
(iv) with for each Renewables Share transferred to TransAlta in respect of which a holder has elected (or is deemed to have elected) to receive the Renewables Share Consideration, TransAlta shall allot and issue to such holder, in respect of each share of Parent Common Stock issued to a former holder of Company Renewables Share so transferred, the Renewables Share Consideration, as fully paid and non-assessable TransAlta Shares, and the name of such holder shall be entered in added to the register of the holders of Parent Common Stock as TransAlta Shares on the registered holder thereofEffective Date.
3.2 With respect to the exchange of Renewables Shares effected pursuant to Section 3.1(c):
(a) each Renewables Shareholder may elect to receive, in respect of each Renewables Share held, the Renewables Cash Consideration or the Renewables Share Consideration, subject to Sections 3.3, 5.9, and 6.1;
(vb) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”election provided for in Section 3.2(a) shall be cancelled made by each Renewables Shareholder by depositing with the Depositary, prior to the Election Deadline, a duly completed Letter of Transmittal indicating such holder’s election, together with any certificates representing the holder’s Renewables Shares;
(c) any Letter of Transmittal, once deposited with the Depositary, shall be irrevocable and may not be withdrawn by a Renewables Shareholder; and
(d) any Renewables Shareholder who does not deposit with the Depositary a duly completed Letter of Transmittal prior to the Election Deadline, or otherwise fails to comply with the requirements of this Section 3.2 and the Letter of Transmittal (including Renewables Shareholders who duly exercise Dissent Rights but are ultimately not entitled, for any reason, to be paid fair value for Renewables Shares in respect of which they have exercised Dissent Rights), shall be deemed to have elected to receive the Renewables Share Consideration in respect of all of such holder’s Renewables Shares.
3.3 Notwithstanding Section 3.2 or any provision herein contrary to, (i) the maximum amount of cash that may, in the aggregate, be paid by TransAlta to the Renewables Shareholders pursuant to Section 3.1(c) shall be equal to the Maximum Cash Consideration; and (ii) the maximum number of TransAlta Shares (excluding any TransAlta Shares to be issued to a Renewables Shareholder in exchange for a Renewables DSU Share) that may, in the aggregate, be issued by TransAlta to the Renewables Shareholders pursuant to Section 3.1(c) shall be equal to the Maximum Share Consideration. In the event that:
(a) the aggregate amount of cash that would, but for this Section 3.3(a), be paid to Renewables Shareholders in accordance with the terms elections or deemed elections of such Renewables Shareholders pursuant to Section 3.2 (the Company Option Plan and“Total Elected Cash Consideration”) exceeds the Maximum Cash Consideration, in exchange then the aggregate amount of cash to be paid to any Renewables Shareholder (other than a Dissenting Shareholder) shall be determined by multiplying the aggregate amount of cash that would, but for this Section 3.3(a), be paid to such cancellationRenewables Shareholder by a fraction, rounded to six decimal places, the numerator of which is the Maximum Cash Consideration and the denominator of which is the Total Elected Cash Consideration; and such holder shall be deemed to have elected to receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing Renewables Cash Consideration for such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratioits Renewables Shares, rounded down to the nearest whole number of shares of Parent Common Stockvalue, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be as is equal to the quotient aggregate amount of cash received by such holder, as adjusted in accordance with this Section 3.3(a), divided by the Renewables Cash Consideration, and the Renewables Share Consideration for the remainder of its Renewables Shares for which, but for this Section 3.3(a), such holder would otherwise have received the Renewables Cash Consideration; or
(b) the aggregate number of TransAlta Shares (excluding any TransAlta Shares to be issued to a Renewables Shareholder in exchange for a Renewables DSU Share) that would, but for this Section 3.3(b), be issued or issuable to Renewables Shareholders in accordance with the elections or deemed elections of such Renewables Shareholders pursuant to Section 3.2 (the “Total Elected Share Consideration”) exceeds the Maximum Share Consideration, then the aggregate number of TransAlta Shares to be issued or issuable to any Renewables Shareholder (other than TransAlta Shares issued or issuable in exchange for a Renewables DSU Share) shall be determined by multiplying the aggregate number of TransAlta Shares (excluding any TransAlta Shares to be issued in exchange for a Renewables DSU Share) that would, but for this Section 3.3(b), be issued to such Renewables Shareholder by a fraction, rounded to six decimal places, the numerator of which is the Maximum Share Consideration and the denominator of which is the Total Elected Share Consideration; and such holder shall be deemed to have elected to receive the Renewables Share Consideration for such number of its Renewables Shares (other than Renewables DSU Shares), rounded down to the nearest whole number, as is equal to the aggregate number of TransAlta Shares (xexcluding any TransAlta Shares to be issued in exchange for a Renewables DSU Share) received by such holder, as adjusted pursuant to this Section 3.3(b), divided by the Renewables Share Consideration, and the Renewables Cash Consideration for the remainder of its Renewables Shares (other than Renewables DSU Shares) for which, but for this Section 3.3(b), such holder would otherwise have received the Renewables Share Consideration.
3.4 With respect to the Renewables DSUs to be dealt with pursuant to Section 3.1(b):
(a) the per share exercise price election provided for such Company Unexercised Option immediately in Section 3.1(b)(i)(B) or 3.1(b)(ii)(B) shall be made by each Renewables DSU Holder by notice in writing to TransAlta, prior to the Effective Time divided by Time, indicating such Renewables DSU Holder’s election;
(yb) each Renewables DSU Holder shall be entitled to elect a combination of the Option Exchange Ratio, rounded up consideration described in Section 3.1(b)(i)(B) or 3.1(b)(ii)(B) (as the case may be) in respect of its aggregate Renewables DSUs; and
(c) any Renewables DSU Holder who does not provide written notice to TransAlta prior to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option Effective Time, or otherwise fails to comply with the requirements of this Section 3.4, shall be vested immediately following the Effective Time as deemed to have elected to receive a cash payment equal to the same percentage of the total Renewables Cash Consideration multiplied by that number of shares Renewables Shares subject thereto as it was vested to each Renewables DSU held by the Renewables DSU Holder immediately prior to the Effective Time, except .
3.5 Notwithstanding any provision herein to the extent such Company Unexercised Option contrary, TransAlta and Renewables agree that this Plan of Arrangement will be carried out with the intention that all the Persons to whom the TransAlta Shares are issued on completion of this Plan of Arrangement will be issued by TransAlta in reliance on the exemption from the registration requirements of the United States Securities Act of 1933, as provided by section 3(a)(10) thereof and pursuant to exemptions from registration under any Applicable U.S. Securities Laws.
3.6 Each Renewables Shareholder who receives a combination of Renewables Share Consideration and Renewables Cash Consideration in exchange for Renewables Shares as a result of elections made (either by its terms or by deemed to be made) or as a result of the terms Maximum Share Consideration or Maximum Cash Consideration being exceeded as set forth in Section 3.3 shall be deemed for the purposes of another Contract) provides the Tax Act and otherwise to receive only the Renewables Share Consideration for acceleration the number of vesting thereof. Each Company Unexercised Option shallRenewables Shares exchanged for the Renewables Share Consideration and only the Renewables Cash Consideration for the number of Renewables Shares exchanged for the Renewables Cash Consideration, provided, however, that a Renewables Shareholder who receives a combination of Renewables Share Consideration and Renewables Cash Consideration and makes a valid joint tax election with TransAlta in accordance with Subsection 3.7 to have the transfer of Renewables Shares to TransAlta under this Plan of Arrangement take place pursuant to the provisions of subsection 85(1) or (2) of the Tax Act (and the analogous provisions of any provincial tax laws), shall be deemed for purposes of the Tax Act and otherwise to have exchanged all of the holder’s Renewables Shares transferred to TransAlta as a single transaction for consideration consisting of the combination of the aggregate Renewables Share Consideration and Renewables Cash Consideration received by such holder under this Plan of Arrangement.
3.7 An Eligible Holder who transfers Renewables Shares to TransAlta pursuant to Section 3.1(c) and receives TransAlta Shares as all or part of the consideration received by such holder under this Plan of Arrangement shall be entitled to make a joint election with TransAlta (the “Joint Tax Election”) under subsection 85(1) or subsection 85(2) of the Tax Act (and the corresponding provisions of any applicable provincial tax legislation). A Joint Tax Election shall be made jointly by the Eligible Holder and TransAlta. To make a Joint Tax Election, an Eligible Holder must provide the relevant information, including the Joint Tax Election, to TransAlta through a website that will be made available for this purpose. This relevant information must be submitted to TransAlta through the website on or before the day that is 90 days following the Effective Date (the “Tax Election Deadline”). TransAlta may not make a Joint Tax Election with Eligible Holders who do not provide the relevant information through the website, including the Joint Tax Election, on or before the Tax Election Deadline. After receipt of all of the relevant information through the website, and provided that the information provided complies with the rules under the Tax Act regarding the Joint Tax Election, within 90 days from the Tax Election Deadline and in any case prior to March 31, 2024, TransAlta will deliver an executed copy of the Joint Tax Election containing the relevant information to the Eligible Holder. The Eligible Holder will be solely responsible for executing its termsportion of the Joint Tax Election and submitting it to the Canada Revenue Agency (and, be subject where applicable, to further adjustment to reflect any stock splitprovincial tax authority) within the required time. TransAlta will have no responsibility, division or subdivision liability, in respect of sharesany Joint Tax Election other than the specific requirements contemplated in this Section 3.7.
3.8 From and after the Effective Time, stock dividend, reverse stock split, consolidation this Plan of shares, reclassification, recapitalization Arrangement shall take precedence and priority over any and all Renewables DSUs issued or other similar transaction subsequent outstanding prior to the Effective Time. The exercise price under each Company Unexercised OptionTime and the applicable terms and conditions thereof, the number of shares for which such Company Unexercised Option is exercisable and including the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act Renewables DSU Plan and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parentagreement, the Company certificate or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.o
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Skye Shareholder Rights Plan shall be cancelled; and
terminated (viiand all rights issued thereunder shall expire) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect;
(b) each Skye Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to HudBay and HudBay shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4 hereof, and the name of such holder shall be removed from the central securities register as a holder of Skye Shares and HudBay shall be recorded as the registered holder of the Skye Shares so transferred and shall be deemed to be the legal owner of such Skye Shares;
(c) each Skye Share held by a Former Skye Shareholder (other than a Dissenting Shareholder or HudBay or any subsidiary of HudBay) shall be transferred to HudBay and in consideration therefor HudBay shall issue HudBay Shares on the basis of 0.61 of a fully paid and non-assessable HudBay Share (the “Share Exchange Ratio”) for each Skye Common Share plus $0.001 in cash, subject to Sections 3.03, 3.04 and Article 5 hereof;
(d) each Skye Option outstanding immediately prior to the Effective Time, whether or not vested, shall be exchanged for an option (a “Converted HudBay Option”) to acquire (on the same terms and conditions as were applicable to such Skye Option immediately before the Effective Time under the Skye Stock Option Plan and the agreement evidencing the grant except to the extent that such Converted HudBay Option will expire on the expiry date for such option), the number (rounded down to the nearest whole number) of HudBay Shares equal to the product of: (A) the number of Skye Shares subject to such Skye Option immediately prior to the Effective Time and (B) the Skye Share Exchange Ratio. The exercise price per HudBay Share subject to any such converted HudBay Option shall be the amount (rounded up to the nearest one-hundredth of a cent) equal to the quotient of (A) the exercise price per Skye Share subject to such Skye Option immediately before the Effective Time divided by (B) the Share Exchange Ratio, provided that the exercise price otherwise determined shall be adjusted to the extent, if any, required to ensure that the Converted HudBay Option In the Money Amount immediately after the exchange is equal to the Skye Stock Option In the Money Amount of the exchanged Skye Option immediately before the Effective Time;
(e) on the Effective Date the Deferred Share Unit Plan of Skye is amended to provide that each outstanding Skye DSU shall thereafter relate to the number of HudBay Shares determined by multiplying the number of Skye Shares to which such Skye DSU relates by the Share Exchange Ratio, all references to “Shares” in the Deferred Share Unit Plan shall be deemed to be references to HudBay Shares or to the number of HudBay Shares so determined and to make such other changes necessary to give effect to the foregoing and to ensure that it qualifies a plan described in regulation 6801(d) under the Tax Act;
(f) each Skye Share held by HudBay including the Skye Shares acquired pursuant to Sections 3.01(b) and (c) hereof shall be transferred to Subco in consideration of the issue by Subco to HudBay of one common share of Subco for each Skye Share so transferred;
(g) the stated capital in respect of the Skye Shares shall be reduced to $1.00 without any repayment of capital in respect thereof;
(h) Skye and Subco shall amalgamate to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the BCBCA;
(i) from and after the Effective Date, at the time of the step contemplated in Section 3.01(h):
(i) Amalco will own and hold all property of Skye and Subco and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such merger, and all liabilities and obligations of Skye and Subco, whether arising by contract or otherwise, may be enforced against Skye to the same extent as if such obligations had been incurred or contracted by it;
(ii) Amalco will continue to be liable for all of the liabilities and obligations of Skye and Subco;
(iii) all rights, contracts, permits and interests of Skye and Subco will continue as rights, contracts, permits and interests of Amalco as if Skye and Subco continued and, for greater certainty, the merger will not constitute a transfer or assignment of the rights or obligations of either of Skye or Subco under any such rights, contracts, permits and interests;
(iv) any existing cause of action, claim or liability to prosecution will be unaffected;
(v) a civil, criminal or administrative action or proceeding pending by or against either Subco or Skye may be continued by or against Amalco;
(vi) a conviction against, or ruling, order or judgment in favour of or against either Subco or Skye may be enforced by or against Amalco;
(vii) HudBay shall receive on the amalgamation one Amalco Common Share in exchange for each Subco Common Share previously held and all of the issued and outstanding Skye Shares will be cancelled without any repayment of capital in respect thereof;
(viii) the name of Amalco shall be “Skye Resources Inc.”;
(ix) Amalco shall be authorized to issue an unlimited number of common shares without par value;
(x) the articles of the Amalco shall be substantially in the form of Skye’s articles;
(xi) the first annual general meeting of Amalco will be held within 18 months from the Effective Date;
(xii) the first directors of Amalco following the amalgamation shall be •, • and •; and
(xiii) the capital of common shares of Amalco will be an amount equal to the paid up capital, as that term is defined in the Tax Act, attributable to the shares of Subco immediately prior to the merger.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Claude Shareholder Rights Plan shall be cancelled; and
terminated (viiand all rights issued thereunder shall expire) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect;
(b) each Claude Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Acquiror and Acquiror shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4 hereof, and the name of such holder shall be removed from the central securities register as a holder of Claude Shares and Acquiror shall be recorded as the registered holder of the Claude Shares so transferred and shall be deemed to be the legal owner of such Claude Shares;
(c) each Claude Share (other than a Claude Share held by a Dissenting Shareholder or a Claude Share held by Acquiror or any subsidiary of Acquiror) shall be deemed to be transferred to Acquiror and, in consideration therefor, Acquiror shall issue and pay the following Consideration for each Claude Share, subject to Sections 3.3, 3.4 and Article 5 hereof 0.185 of an Acquiror Share and $0.001 in cash;
(d) each Claude Option outstanding immediately prior to the Effective Time, whether or not vested, shall be exchanged for a fully vested option (each a “Converted Acquiror Option”) to acquire from Acquiror the number of Acquiror Shares equal to the product of: (A) the number of Claude Shares subject to such Claude Option immediately prior to the Effective Time; multiplied by (B) 0.185 provided that, if the foregoing would result in the issuance of a fraction of an Acquiror Share on any particular exercise of Converted Acquiror Options, then the number of Acquiror Shares otherwise issued shall be rounded down to the nearest whole number of Acquiror Shares. The exercise price per Acquiror Share subject to a Converted Acquiror Option shall be an amount equal to the quotient of: (A) the exercise price per Claude Share subject to each such Claude Option immediately before the Effective Time; divided by (B) 0.185 provided that the aggregate exercise price payable on any particular exercise of Converted Acquiror Options shall be rounded up to the nearest whole cent. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to the exchange of a Claude Option for a Converted Acquiror Option. Therefore, in the event that the Converted Acquiror Option In-The Money Amount in respect of a Converted Acquiror Option exceeds the Claude Option In-The Money Amount in respect of the Claude Option, the number of Acquiror Shares which may be acquired on exercise of the Converted Acquiror Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Converted Acquiror Option In-The Money Amount in respect of the Converted Acquiror Option does not exceed the Claude Option-In The Money Amount in respect of the Claude Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged. All other terms and conditions of the Converted Acquiror Options, including the term to expiry, will be the same as the Claude Option for which it was exchanged and each Converted Acquiror Option shall continue to be governed by and be subject to the terms of the Claude Stock Option Plan and the agreement evidencing the grant of such Claude Option (in each case as amended by the Board of Directors of Claude). Notwithstanding the foregoing and the terms and conditions of the Claude Stock Option Plan, the expiry date of any Converted Acquiror Options that are held by a person who ceases to be a director or consultant of Claude or is an employee or officer that is terminated without cause within six months after the Effective Date shall be the earlier of (A) the expiry date of such Converted Claude Option (with such expiry date not being a result of the holder of the option ceasing to be a director, consultant, officer or employee of Claude) and (B) two years after the date such person ceases to be a director or consultant of Claude or is terminated; and
(e) Claude will file an election with the Canada Revenue Agency to cease to be a public corporation for the purposes of the Tax Act.
Appears in 1 contract
Sources: Arrangement Agreement (Silver Standard Resources Inc)
Arrangement. Commencing on At the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further authorizationsequence, act or formality of or by the Company, Parent or any other Personunless specifically noted:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share the Notice of Articles and Company Articles of Ignite CAN are amended to create the Ignite CAN Proportionate Voting Shares and redesignate the Ignite CAN Common Share outstanding immediately Shares as Ignite CAN Subordinate Voting Shares and set out the rights and restrictions of Ignite CAN Subordinate Voting Shares;
(b) if the Financing is completed prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled Subscription Receipts are exchanged for no additional consideration into ▇▇▇▇▇ Shares in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially Subscription Receipts;
(c) if the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately Financing is completed prior to the Effective Time Date, ▇▇▇▇▇ and Merger Sub amalgamate under Section 269 of the BCBCA to form AmalCo;
(including any repurchase rights or vesting provisionsd) pursuant to the amalgamation described in Section 3.1(c), if applicable), except that each ▇▇▇▇▇ Share is cancelled and in exchange therefor Ignite CAN issues Ignite CAN Subordinate Voting Shares on a one-to-one basis;
(e) if applicable, with respect to each ▇▇▇▇▇ Share cancelled in accordance with Section 3.1(d) hereof:
(i) each Company Unexercised Option will of the holders thereof shall cease to be exercisable the registered or beneficial holder of such ▇▇▇▇▇ Share and the name of the registered holders shall be removed from the registers of ▇▇▇▇▇ Shareholders as of the Effective Time;
(or will become exercisable ii) each of the holders thereof shall cease to have any rights as a shareholder other than the right to be issued the Ignite CAN Subordinate Voting Shares in accordance with its termsthis Plan of Arrangement; and
(iii) solely for a number of whole the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect such cancellation and exchange;
(f) if applicable, the shares of Parent Common Stock equal Merger Sub will be cancelled and exchanged for shares of AmalCo on a one-to-one basis;
(g) Ignite CAN shall accept for transfer from Ignite US Shareholders (other than Ignite CAN) that are not U.S. Residents their Ignite US Shares in consideration for Ignite CAN Subordinate Voting Shares on a one (1) Ignite US Share to 2.65 Ignite CAN Subordinate Voting Shares basis;
(h) Ignite CAN shall accept for transfer from Ignite US Shareholders that are U.S. Residents their Ignite US Shares in consideration for Ignite CAN Proportionate Voting Shares on a one (1) Ignite US Share to 0.01325 Ignite CAN Proportionate Voting Share basis;
(i) Ignite CAN shall cause Ignite US to, with respect to each Ignite US Share transferred in accordance with Sections 3.1(g) and 3.1(h) hereof, remove from the product books of Ignite US each of the holders thereof as registered or beneficial holder of such Ignite US Share;
(xj) from and after the Effective Date, if applicable, at the time of the amalgamation contemplated in Section 3.1(c):
(i) the number property, rights and interests of Company Common Shares that would each of ▇▇▇▇▇ and Merger Sub shall continue to be issuable upon exercise the property, rights and interests of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and AmalCo;
(ii) the per share exercise price AmalCo shall continue to be liable for the shares obligations of Parent Common Stock issuable upon exercise each of such Company Unexercised Option ▇▇▇▇▇ and Merger Sub;
(iii) any existing cause of action, claim or liability to prosecution will be equal to unaffected;
(iv) a civil, criminal, quasi-criminal, administrative or regulatory action or proceeding being prosecuted or pending by or against either ▇▇▇▇▇ or Merger Sub may be prosecuted, or its prosecution may be continued, as the quotient equal to case may be, by or against AmalCo;
(xv) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided a conviction against, or a ruling, order or judgment in favour of or against either ▇▇▇▇▇ or Merger Sub may be enforced by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;against AmalCo; and
(vi) The Company Option Plan the Notice of Articles and Articles of Merger Sub shall be cancelled; andremain the Notice of Articles and Articles of AmalCo;
(viik) without any action on Merger Sub, ▇▇▇▇▇, AmalCo, Ignite CAN and Ignite US shall make the part of Parent, appropriate entries in their respective securities registers to reflect the Company or the holder of that certain warrant matters referred to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectin this Section 3.1.
Appears in 1 contract
Sources: Business Combination Agreement
Arrangement. Commencing on at the Effective Time, the following shall steps or transactions shall, unless specifically provided otherwise in this Section 3.1, occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by formality, in each case at five-minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach outstanding Mandalay DSU shall, Class B Convertible Preferred Sharewithout any further action on the part of any holder thereof and notwithstanding the terms of the Mandalay Omnibus Plan, Class C Convertible Preferred Share be, and Company Common shall be deemed to be, settled and cancelled, and in consideration thereof, Mandalay shall allot and issue from treasury to the holder of such Mandalay DSU such number of Mandalay Shares as are due to such holder under the terms of the Mandalay Omnibus Plan (subject to withholding in accordance with this Plan of Arrangement) and the name of each such former holder of a settled and cancelled Mandalay DSU shall be entered in Mandalay's central securities register of holders of Mandalay Shares as a holder of Mandalay Shares but no such former holder shall be entitled to a certificate or DRS representing the Mandalay Shares issued upon the settlement and cancellation of such holder's Mandalay DSUs;
(b) each Mandalay Share outstanding immediately prior to the Effective Time held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised shall be be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Mandalay for cancellation and Mandalay shall thereupon be irrevocably obliged to pay the amount therefor determined and payable in accordance with Article 4 hereof, and:
(i) the name of such registered holder shall be removed from the central securities register of Mandalay as a holder of such Mandalay Shares;
(ii) such Dissenting Shareholders will cease to be the registered holder of such Mandalay Shares and will cease to have any rights as Mandalay Shareholders other than the right to be paid the fair value for their Mandalay Shares as set out in Article 4 hereof; and
(iii) such Mandalay Shares so transferred to Parent Mandalay shall thereupon be cancelled by Mandalay and the central securities register of Mandalay shall be revised accordingly;
(c) each Mandalay Share outstanding immediately prior to the effective time of the transfer under this Section 3.1(c) (for the avoidance of doubt, not including Mandalay Shares held immediately before the Effective Time by a Dissenting Shareholder that were transferred to Mandalay for cancellation under Section 3.1(b) or Mandalay Shares held by Alkane or Acquireco, but including any Mandalay Shares issued to holders of Mandalay DSUs pursuant to Section 3.1(a)) shall be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality by such Mandalay Shareholder, free and clear of all liens, claims and encumbrances, to Acquireco in exchange for, in each case, (subject to Section 3.2) for that number of shares Alkane Shares equal to the Exchange Ratio for each Mandalay Share, and each of Parent Common Stock as determined in accordance with Alkane and Acquireco shall be deemed to have directed the formula set out on Exhibit A attached hereto.
(b) Upon Depositary to issue and to deliver to such holder the transfer of all Company Shares Consideration to Parentwhich such holder is entitled pursuant to this Section 3.1(c), and upon such exchange:
(i) each holder of such Company Mandalay Shares shall cease to be the holder thereof and to have any rights as a Mandalay Shareholder other than the right to be paid the Consideration pursuant to this Section 3.1(c) and in accordance with this Plan of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company SharesArrangement;
(ii) legal and beneficial title to such Company each Former Mandalay Shareholder shall be removed from Mandalay's central securities register of holders of Mandalay Shares;
(iii) Acquireco shall be entered in Mandalay's central securities register of holders of Mandalay Shares will vest in Parent and Parent will be and be deemed to be as the transferee and legal and beneficial owner of such Company Shares Mandalay Shares, free of all liens, claims and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;encumbrances; and
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder Former Mandalay Shareholder shall be entered in the Alkane's register of holders of Parent Common Stock as the registered holder thereofAlkane Shares in respect of Alkane Shares deliverable to such Former Mandalay Shareholder pursuant to this Section 3.1(c);
(vd) without any action each of the following shall, and shall be deemed to, occur concurrently with the transfer in Section 3.1(c):
(i) in consideration for the issuance by Alkane (on behalf of and for the part benefit of ParentAcquireco) of the Consideration issued to Mandalay Shareholders pursuant to Section 3.1(c), Acquireco shall, and shall be deemed to, issue to Alkane that number of Acquireco Common Shares having an aggregate fair market value equal to the Company or aggregate Fair Market Value of the holders Alkane Shares issued pursuant to Section 3.1(c); and
(ii) Acquireco shall, and shall be deemed to, add to its capital for the Acquireco Common Shares, in respect of Company the issuance of Acquireco Common Shares to Alkane under Section 3.1(d)(i), an amount equal to the aggregate Fair Market Value of the Alkane Shares issued pursuant to Section 3.1(c); and
(e) all outstanding Mandalay Options, except as otherwise required by applicable Legal Requirements, each Company Option Mandalay PSUs and Mandalay RSUs that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement have not been duly exercised or other document evidencing such Company Option, if any) as were in effect immediately settled prior to the Effective Time (including shall terminate without any repurchase rights further act or vesting provisionsformality, if applicable), except that the Mandalay Plans will terminate and none of (i) each Company Unexercised Option will be exercisable (the former holders of Mandalay Options, Mandalay DSUs, Mandalay PSUs or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange RatioMandalay RSUs, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to Parties or (xiii) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage any of the total number respective successors or assigns of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan foregoing, shall be cancelled; and
(vii) without have any action on the part of Parentrights, the Company liabilities or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as obligations in respect of the Closing and shall be of no further force or effectMandalay Plans.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on Each of the Effective Time, the following events set out below shall occur as part of the Arrangement and shall be deemed to occur in the following order sequence or as otherwise provided below or herein, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately effective at twenty (20) minutes prior to the Effective Time Time, each Broadway Common Share in respect of which a Broadway Dissenting Shareholder has exercised Dissent Rights shall be be, and shall be deemed to be irrevocably be, transferred to Parent in exchange for, in each case, that number Broadway free and clear of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:any Encumbrances for cancellation without any further act or formality and
(i) each holder of such Company Shares Dissenting Broadway Shareholders shall cease to be the holder holders of such Company Broadway Common Shares, and to have any rights as holders of Broadway Common Shares, other than the right to be paid fair value for such Broadway Common Shares and such holder’s name shall be removed from the applicable securities register of Company Sharesas set out in Article 5 hereof;
(ii) legal and beneficial title to such Company Dissenting Broadway Shareholders’ names shall be removed as the holders of such Broadway Common Shares will vest in Parent and Parent will be and from the register of Broadway Common Shares maintained by or on behalf of Broadway; and
(iii) Broadway shall be deemed to be the transferee and legal and beneficial owner holder of such Company Shares Broadway Common Share (free and will clear of all Encumbrances) shall be entered as the registered holder of such Broadway Common Share in the applicable securities register of the Company as the sole shareholder thereofBroadway Common Shares maintained by or on behalf of Broadway;
(b) effective at fifteen (15) minutes prior to the Effective Time, Broadway shall, in the following order, complete (i) the Consolidation; (ii) the Name Change, and (iii) no fractional shares of Parent Common Stock shall be issued in connection with the ArrangementAuthorized Capital Amendment, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise registered Broadway Shareholders will be entitled to receive a fraction of a share of Parent Common Stock (Broadway Certificates after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded giving effect to the nearest whole cent)Consolidation, without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day Name Change and Authorized Capital Amendment;
(c) effective at ten (10) minutes prior to the Closing Date;
(iv) with respect Effective Time, Broadway will transfer the Transferred Assets to each share of Parent Common Stock issued to a former holder of Company Shares, Spinco and Spinco will assume the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled Assumed Liabilities in accordance with the terms Transfer Agreement in consideration for that number of Spinco Common Shares (the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any“Spinco Distribution Shares”) as were in effect is equal to the number of Broadway Common Shares issued and outstanding immediately prior to the Effective Time (including any repurchase rights or vesting provisionsfor greater certainty, if applicableon a pre-Consolidation basis) on such record date as determined by Broadway less the number of Broadway Common Shares transferred to Broadway pursuant to Section 2.1(a) above (for greater certainty, on a pre- Consolidation basis), except and Broadway shall be added to the register of Spinco Common Shares maintained by or on behalf of Spinco, and in connection therewith, in accordance with the BCBCA, Spinco shall add to the stated capital account maintained by Spinco for the Spinco Common Shares an amount that shall equal the fair market value of the Spinco Distribution Shares issued to Broadway;
(d) effective at five (5) minutes prior to the Effective Time, the Spinco Distribution Shares will be distributed to the holders of Broadway Common Shares (other than a Dissenting Broadway Shareholder) pursuant to section 2.1(c) above and the names of the Broadway Shareholders shall be added to (and Broadway removed from) the register of Spinco Common Shares maintained by or on behalf of Spinco, and in connection therewith;
(i) each Company Unexercised Option the Spinco Incorporation Share issued to Broadway on incorporation shall be cancelled for no consideration and as a result thereof:
(A) Broadway shall cease to be, and shall be deemed to have ceased to be, the holder of the Spinco Incorporation Share and to have any rights as a holder of the Spinco Incorporation Share; and
(B) Broadway shall be removed as the holder of the Spinco Incorporation Share from the register of Spinco Common Shares maintained by or on behalf of Spinco;
(ii) Broadway will be exercisable (or will become exercisable in accordance deemed to have reduced the stated capital of the Broadway Common Shares with its terms) solely for a number the same effect as if reduced pursuant to Section 74 of whole shares of Parent Common Stock the BCBCA, by an amount equal to the product fair market value of (x) the number Spinco Distribution Shares, and Broadway will be deemed to have effected the reduction of Company capital of the Broadway Common Shares that would be issuable upon exercise by being deemed to have paid and distributed the Spinco Distribution Shares to the Broadway Shareholders, other than the Dissenting Broadway Shareholders, on the basis of the Company Unexercised Option one Spinco Distribution Share for every one Broadway Common Share one held immediately prior to the Effective Time multiplied by (yfor greater certainty, on a pre-Consolidation basis) as a return of capital distribution in-kind; provided that the Option Exchange Ratio, rounded down to aggregate reduction in the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price stated capital for the shares Broadway Common Shares shall not exceed the aggregate paid-up capital (as that term is used for the purposes of Parent the Tax Act) of the Broadway Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option Shares immediately prior to the Effective Time divided by Time;
(ye) effective at the Option Exchange RatioEffective Time, rounded up Delaware Subco, in accordance with the Delaware General Corporation Law, shall merge with and into MindMed and MindMed shall continue as the surviving corporation under the laws of the State of Delaware in the manner set out in Appendix “II” attached to this Plan of Arrangement, and each of the nearest whole cent following will occur:
(a “Parent Replacement Option”). Each Company Unexercised Option i) in accordance with the constating documents of MindMed, each issued and outstanding MindMed Class B Share, MindMed Class C Share and MindMed Class D Share shall automatically convert into one fully-paid, non-assessable share of MindMed Class A Share;
(ii) each issued and outstanding MindMed Class A Share (including all MindMed Class A Shares issued on automatic conversion of the MindMed Class B Shares, MindMed Class C Shares and MindMed Class D Shares set out in subsection 2.1(e)(i) above) shall be vested immediately following exchanged for either (A) one (1) Broadway Common Share or (B) one/hundredth (1/100) of a Broadway Multiple Voting Share (as determined by Broadway and MindMed), and thereafter the Effective Time as to the same percentage MindMed Class A Shares shall be cancelled without any repayment in respect thereof;
(iii) each issued and outstanding MindMed Warrant shall be exchanged for one Broadway Replacement Warrant;
(iv) each share of the total number common stock, par value $0.001 per share, of shares subject thereto as it was vested Delaware Subco, issued and outstanding immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to converted into and become one validly issued, fully paid and non-assessable MindMed Common Share of MindMed after the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelledMerger; and
(viiv) without any action on in consideration of the part of ParentBroadway Common Shares, Broadway Multiple Voting Shares (as the Company or case may be) and Broadway Replacement Warrants issued pursuant to section 2.1(e)(ii) and (iii) above, respectively, MindMed (as the holder of that certain warrant to purchase Company surviving corporation in connection with the Merger) will issue 1,000 MindMed Common Shares dated as to Broadway and, other than the MindMed Common Shares issued pursuant to Section 2.1(e)(iv) above, such shares shall constitute the only outstanding shares of October 5capital stock of MindMed after the Merger.
(f) All of the foregoing events are intended to be completed, 2007 issued by failing any one of which, none of the Company (the “Warrant”), the Warrant foregoing will occur and this Plan of Arrangement shall be terminated as of the Closing null and shall be void and of no further force or effectand effect unless otherwise agreed to by the Parties.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order sequence in each case, except where stated otherwise, without any further authorization, act or formality of or by the Company, Parent the Purchaser or any other Person:
(a) Each Class A Convertible Preferred at the Effective Time:
(i) pursuant to the terms of the Company Stock Option Plan, the Board shall prior to the Effective Time: (i) approve the acceleration of the vesting of all outstanding Company Options, subject to receipt of requisite regulatory approval (if any), and upon such approval each Company Option shall be deemed to be vested and exercisable prior to the Effective Time; and (ii) approve, conditional upon completion of the Arrangement, the termination and cancellation of all Company Options that have not been exercised prior to the Effective Time without payment of any consideration to the holders of such terminated and cancelled Company Options;
(ii) the Company Stock Option Plan and all agreements relating to Company Options shall be terminated and of no further force or effect and neither the Company nor the Purchaser shall have any liability or obligations with respect to the Company Option Plan or any agreements relating to Company Options;
(iii) in accordance with the terms of the Agent Compensation Options, each holder of an Agent Compensation Option outstanding immediately prior to the Effective Time shall receive upon the subsequent exercise of such holder’s Agent Compensation Option, in accordance with its terms and for the same aggregate consideration therefor, and shall accept in lieu of each Company Common Share to which such holder was theretofore entitled upon such exercise, the Consideration; and
(iv) each Company RSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall immediately vest and the Company shall allot and issue to each holder of a Company RSU such number of Company Common Shares (provided that no share certificates shall be issued with respect to such shares as are due to such holder) under the terms of the Company RSU Plan and thereafter the Company RSU Plan will terminate and none of the former holders of Company RSUs, the Company, the Purchaser or any of their respective successors or assigns shall have any rights, liabilities or obligations in respect of the Company RSU Plan.
(b) immediately after the steps in Section 2.3(a):
(i) each Company Common Share held by a Dissenting Shareholder who is ultimately determined to be entitled to be paid the fair value of his, her or its Company Common Shares in accordance with Article 3 (a “Dissenting Share”) shall be and shall be deemed to have been transferred to the Purchaser (free and clear of all Liens) in consideration for a debt claim against the Purchaser in an amount equal to the fair value of such Dissenting Share determined and payable in accordance with Article 3; and
(ii) with respect to each Dissenting Share transferred to the Purchaser pursuant to Section 2.3(b)(i): (A) the registered holder of such Dissenting Share will cease to be the holder thereof or to have any rights as a holder thereof (other than the right to receive fair value of such Dissenting Share in accordance with Article 3) and the name of the registered holder thereof will be removed from the central securities register of the Company, Class B Convertible Preferred Share(B) the holder of such Dissenting Share shall be deemed to have executed and delivered all consents, Class C Convertible Preferred releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Company Common Shares and (C) the Purchaser shall be and shall be deemed to be the transferee of such Dissenting Share (free and clear of all Liens) and will be entered in the central securities register of the Company as the sole holder thereof; and
(c) immediately after the steps in Section 2.3(b):
(i) each Company Common Share outstanding immediately prior to the Effective Time (including the Company Common Shares allotted and issued pursuant to Section 2.3(a)(iv) hereof but other than Dissenting Shares and Company Common Shares directly or indirectly owned by the Purchaser) shall be and shall be deemed to be irrevocably transferred to Parent the Purchaser (free and clear of all Liens) in exchange forfor the Consideration, provided (A) that the Purchaser Common Shares comprising the Consideration shall be subject to the Transfer Restrictions and Exceptions and (B) the certificates or any “direct registration system” statements or advice representing the Purchaser Common Shares comprising the Consideration shall bear (or, in each casethe case of uncertificated Purchaser Common Shares, that number of shares of Parent Common Stock as determined in accordance with be deemed to bear) the formula set out on Exhibit A attached hereto.Restricted Legend until the Release Date;
(bii) Upon with respect to each Company Common Share transferred to the transfer of all Company Shares Purchaser pursuant to Parent:
Section 2.3(c)(i), (iA) each the holder of such Company Shares shall Common Share will cease to be the holder thereof or to have any rights as a holder thereof (other than the right to receive the consideration such holder is entitled to receive pursuant to Section 2.3(c)(i)) and the name of such Company Shares and such holder’s name shall the holder thereof will be removed from the applicable central securities register of Company Shares;
the Company, (iiB) legal and beneficial title to the holder of such Company Common Share shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Company Common Shares will vest in Parent and Parent will (C) the Purchaser shall be and shall be deemed to be the transferee and legal and beneficial owner of such Company Shares Common Share (free and clear of all Liens) and will be entered in the applicable central securities register of the Company as the sole shareholder holder thereof;; and
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised Shareholder (other than a “Company Unexercised Option”Dissenting Shareholder) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company the aggregate number of Purchaser Common Shares dated as of October 5, 2007 issued by to such Company Shareholder pursuant to Section 2.3(c)(i) and the Company (the “Warrant”), the Warrant shall be terminated as securities registers of the Closing and shall Purchaser will be of no further force or effectrevised accordingly.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, Time the following shall transactions will occur and shall be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach Company Share held by a Dissenting Company Shareholder who has validly exercised such Company Shareholder’s Dissent Rights pursuant to Article 5 of this Plan of Arrangement and which Dissent Rights remain valid immediately prior to the Effective Time shall be transferred to, Class B Convertible Preferred Shareand acquired by the Company without any further act or formality on its part, free and clear of all Liens, and cancelled and the Dissenting Company Shareholder shall cease to: (i) be a registered Company Shareholder; and (ii) have any rights as a Company Shareholder other than the right to be paid the fair value of such Company Share in accordance with Article 5 of this Plan of Arrangement;
(b) each Company Class C Convertible Preferred Share issued and Company Common Share outstanding immediately prior to the Effective Time shall be converted into and exchanged for one (1) validly issued, fully paid and non-assessable Company Common Share;
(c) each Company Class D Preferred Share issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for a number of validly issued, fully paid and non-assessable Company Common Shares equal to the Class D Preferred Conversion Ratio;
(d) the issued and outstanding Company Common Shares that are designated as Purchased Shares in the Payment Spreadsheet and held by a Selling Shareholder entitled to Cash Arrangement Consideration as set forth the Payment Spreadsheet will be transferred to Holdco in exchange for the portion of the Cash Arrangement Consideration set forth in the Payment Spreadsheet, and the Purchased Shares will be deemed to be irrevocably have been transferred to Parent in exchange forHoldco without any further act or formality, in free and clear of all Liens, and each case, that number Selling Shareholder entitled to receive a portion of shares the Cash Arrangement Consideration will cease to be the registered holder of Parent Common Stock the Purchased Shares and will cease to have any rights as determined in accordance with registered holder of such Purchased Shares other than the formula right to be paid by Holdco the portion of the Cash Arrangement Consideration set out on Exhibit A attached hereto.the Payment Spreadsheet, and such Company Shareholder’s name will be removed as the registered holder of such Purchased Shares from the central securities register of the Company;
(be) Upon each of the transfer issued and outstanding Company Common Shares held by the Designated Holder shall be transferred to, and acquired by Holdco, free and clear of all Company Liens, and the Designated Holder will be issued the number of Holdco Common Shares and, in lieu of any Holdco Common Shares deemed to Parentbe Excess Shares, the number of Holdco Non-Voting Common Shares set forth in the Payment Spreadsheet, provided that:
(i) each holder of such Company no fractional Holdco Common Shares or fractional Holdco Non-Voting Common Shares shall be issued pursuant to this Section 3.1 and the Designated Holder shall receive, in respect of any such fractional Holdco Common Share and fractional Holdco Non-Voting Common Share that would otherwise be issued, the treatment per Section 3.2; and
(ii) the Designated Holder will cease to be the holder of such Company Shares and such holder’s its name shall will be removed from the applicable central securities register of Company Shares and added to the register of Holdco Common Shares and Holdco Non-Voting Common Shares;
(ii) legal , and beneficial title to such Holdco will be recorded as the registered holder of the Company Shares so exchanged and will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iiif) each remaining issued and outstanding Company Common Share shall be transferred to, and acquired by Holdco, free and clear of all Liens, and each Company Shareholder will be issued the number of Holdco Common Shares set forth in the Payment Spreadsheet, provided that:
(i) no fractional shares of Parent Holdco Common Stock Shares shall be issued in connection with pursuant to this Section 3.1 and the Arrangement, and no certificates or scrip for any person otherwise entitled to receive such fractional shares Holdco Common Share shall receive treatment per Section 3.2; and
(ii) each Company Shareholder will cease to be issued. Any the holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, and the name of such holder shall each Company Shareholder will be entered in removed from the central securities register of Company Shares and added to the register of holders of Parent Holdco Common Stock Shares, and Holdco will be recorded as the registered holder of all of the Company Shares so exchanged and will be deemed to be the legal and beneficial owner thereof;
(vg) without any action on the part of Parent, Holdco Common Share held by the Company or will be cancelled for no consideration and the holders Company will cease to be the registered shareholder of Company Optionssuch Holdco Common Share, except and the Company’s name will be removed as otherwise required by applicable Legal Requirements, each Company Option the registered holder of such Holdco Common Share from the central securities register of Holdco;
(h) the Holdco Common Shares and Holdco Non-Voting Common Shares issued and outstanding at the time of this Section 3.1(h) are the Locked Shares. The Locked Shares are subject to the transfer restrictions set out in Article 6 of this Plan of Arrangement. Holdco will only register a transfer of the Locked Shares that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled made in accordance with the terms transfer restrictions. The Locked Shares are uncertificated and will have a notation in the central securities register of Holdco regarding the Company Option Plan andtransfer restrictions, in exchange for such cancellation, such holder shall receive an option and the written notice sent to purchase shares of Parent Common Stock with substantially Holdco Shareholders will state that the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that transfer restrictions exist;
(i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would directors comprising the Holdco board of directors will be issuable upon exercise set at five individuals consisting of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio▇▇▇▇ ▇▇▇▇▇▇▇▇, rounded down to the nearest whole number of shares of Parent Common Stock▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(iij) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such directors comprising the Company Unexercised Option is exercisable and the terms and conditions board of exercise directors will be set at one individual consisting of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled▇▇▇▇ ▇▇▇▇▇▇▇▇; and
(viik) without any action on the part of Parent, the Company or will adopt the holder form of that certain warrant articles attached as Appendix A to purchase this Plan of Arrangement. The Company Common Shares dated as of October 5, 2007 issued by Unanimous Shareholders’ Agreement and the Company (the “Warrant”), the Warrant shall Investor Rights Agreement will be terminated as of the Closing and shall be of no further force person will have any rights or effectobligations under these agreements.
Appears in 1 contract
Sources: Business Combination Agreement (Schultze Special Purpose Acquisition Corp.)
Arrangement. Commencing on At the Effective Time, without any further act or formality, each of the following events set out below shall occur and shall be deemed to occur in the following order without any further authorizationsequence and at the times specified below, act or formality of or by the Company, Parent or any other Personunless specifically noted:
(a) Each Class A Convertible Preferred payment, in trust, of the Cash Consideration shall be made to the Company’s counsel;
(b) concurrect with the payment of the Cash Consideration, each Share shall be transferred to the Purchaser;
(c) effective in the moment immediately following the transfer of the Shares referred to in Section 2.3(a), the Purchaser shall issue to the Company the Initial Share Consideration, such shares to be issued at a deemed issue price of USD $[●] per Purchaser Share, Class B Convertible Preferred whereby such issue price is equal to the Purchase Price;
(d) effective in the moment immediately following the issuance referred to in Section 2.3(c), the Purchaser shall issue to the Company the Holdback Share Consideration, such Purchaser Shares to be issued at a deemed issue price of USD $[●] per Purchaser Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior whereby such issue price is equal to the Effective Time shall be Purchase Price, and be deemed to be irrevocably transferred to Parent in exchange forheld by the Purchaser, in each case, that number of shares of Parent Common Stock as determined and administered and released in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company SharesHoldback Terms;
(iie) legal each Company Share in respect of which any registered Company Shareholder has validly exercised Dissent Rights shall be directly transferred and beneficial title assigned by such Dissenting Shareholder to such the Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered accordance with ARTICLE 3 hereof;
(f) effective in the applicable securities register moment immediately following the issuance referred to in Section 2.3(e), the Company shall by resolution and in compliance with Section 74 of the Business Corporations Act (British Columbia) reduce the capital (and for income tax purposes the paid-up capital) of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar by an amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product fair market value of the Initial Share Consideration and shall distribute the Initial Share Consideration to the Company Shareholders (xother than Dissenting Shareholders) in payment of the return of capital, with each such Company Shareholder receiving such number of Company Common Purchaser Shares that would be issuable upon exercise of comprising the Company Unexercised Option immediately prior Initial Share Consideration in proportion to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per their pro rata share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective TimeCompany Shares issued and outstanding, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) provided that none of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan foregoing shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as occur unless all of the Closing and shall be of no further force or effectforegoing occur.
Appears in 1 contract
Sources: Arrangement Agreement (Marizyme Inc)
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Person:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange forformality, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentunless stated otherwise:
(1) each Alacer Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Liens, to Alacer for the consideration contemplated in Article 4, and: (i) each holder the name of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name Dissenting Shareholder shall be removed from the applicable central securities register as a holder of Company SharesAlacer Shares and such Alacer Shares shall be cancelled and cease to be outstanding; and (ii) such Dissenting Shareholder will cease to have any rights as an Alacer Shareholder other than the right to be paid the fair value for their Alacer Shares as set out in Article 4;
(ii2) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and each Alacer Share (other than an Alacer Share held by a Dissenting Shareholder) shall be deemed to be transferred to SSR and, in consideration therefor, SSR shall issue the transferee Consideration for each Alacer Share, subject to Section 3.3 and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofArticle 5;
(iii3) no fractional shares of Parent Common Stock shall be issued each Alacer RSU held by a holder who has consented thereto in connection an agreement with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) Alacer shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any further action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, any such holder shall receive an option to purchase shares of Parent Common Stock with substantially Alacer RSUs, be continued on the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested applicable immediately prior to the Effective Time, except that, pursuant to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides the Alacer RSU Plan, the terms of the Alacer RSUs shall be amended so as to substitute for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be the Alacer Shares subject to further adjustment such Alacer RSUs such number of SSR Shares equal to reflect any stock split, division or subdivision (A) the number of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent Alacer Shares subject to the Alacer RSUs immediately prior to the Effective Time. The exercise price under each Company Unexercised Option, multiplied by (B) the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as Exchange Ratio, rounded down to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawtwo decimal places;
(vi4) The Company Option Plan shall be cancelled; and
(vii) concurrently with the events described in Section 3.1(3), each Alacer PSU held by a holder who has consented thereto in an agreement with Alacer shall, without any further action on the part of Parentany such holder of Alacer PSUs, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Alacer PSU Plan, the Company or terms of the Alacer PSUs shall be amended so as to substitute for the Alacer Shares subject to such Alacer PSUs such number of SSR Shares equal to (A) the number of Alacer Shares subject to the Alacer PSUs immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;
(5) concurrently with the events described in Section 3.1(3) and Section 3.1(4), each Alacer DSU shall, without any further action on the part of any holder of that certain warrant Alacer DSUs, be continued on the same terms and conditions as were applicable immediately prior to purchase Company Common Shares dated as the Effective Time, except that, pursuant to the terms of October 5, 2007 issued by the Company (the “Warrant”)Alacer DSU Plans, the Warrant terms of the Alacer DSUs shall be terminated amended so as to substitute for the Alacer Shares subject to such Alacer DSUs such number of SSR Shares equal to (A) the Closing and shall be number of no further force or effect.Alacer Shares subject to the Alacer DSUs immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and each of the outstanding shares of Company Common Share Stock that is not held by a holder who has exercised its Dissent Rights and is ultimately entitled to be paid the fair value of its shares of Company Common Stock (other than shares of Company Common Stock held by Parent or the Purchaser or any affiliate thereof) will be transferred by the holder thereof to the Purchaser in exchange for US $1.05 per share of Company Common Stock, payable in cash, subject to adjustment in accordance with Section 6.15 of the Arrangement Agreement (the "CASH CONSIDERATION"). Notwithstanding any other provision in this Plan of Arrangement or the Arrangement Agreement, subject to Section 6.10 of the Arrangement Agreement, in no event shall the number of shares of Company Common Stock outstanding immediately prior to at the Effective Time exceed 15,235,903 shares of Company Common Stock, and in no event shall the aggregate Cash Consideration exceed US $16,000,000;
(b) each share of Company Common Stock in respect of which Dissent Rights have been exercised shall be and shall be deemed to be irrevocably transferred to the Purchaser with the Purchaser and the Parent in exchange for, in each case, that number of shares of Parent Common Stock as being jointly and severally obligated to pay therefor the amount determined in accordance with the formula set out on Exhibit A attached hereto.Article 3 of this Plan of Arrangement;
(bc) Upon the transfer with respect to each share of all Company Shares to Parent:Common Stock acquired or transferred in accordance with Section 2.2(a) or Section 2.2(b):
(i) each the holder thereof shall cease to be the holder of such share of Company Shares Common Stock and the name of such holder shall be removed from the register of holders of Company Common Stock;
(ii) the certificate representing such share of Company Common Stock shall be deemed to have been canceled as of the Effective Time;
(iii) the holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such shares in accordance with Section 2.2(a) or Section 2.2(b); and
(iv) the Purchaser shall be and shall be deemed to be the transferee of such share of Company Common Stock if transferred in accordance with Section 2.2(a) or Section 2.2(b) and shall be entered in the register of registered holders of the Company as the legal holder of such shares of Company Common Stock.
(d) each outstanding Company 2007 Warrant (other than Company 2007 Warrants held ▇▇ ▇▇▇▇▇▇ ▇r the Purchaser or any affiliate thereof) will be transferred by the holder thereof to the Company in exchange for the Warrant Consideration;
(e) with respect to each Company 2007 Warrant acquired or transferred in accordance ▇▇▇▇ ▇▇▇▇▇▇▇ 2.2(d):
(i) the holder thereof shall cease to be the holder of such Company Shares 2007 Warrant and the name of such holder’s name shall be removed holder s▇▇▇▇ ▇▇ ▇▇▇▇ved from the applicable securities register of holders of Company Shares2007 Warrants;
(ii) legal and beneficial title to the certificate representing such Company Shares will vest 2007 Warrant shall be deemed to have been cancelled as of the Effective Time;
(iii) the holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to acquire or transfer such Company 2007 Warrant in Parent and Parent will accordance with Section 2.▇(▇); ▇▇▇
(iv) the Company shall be and shall be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii2007 Warrants transferred in accordance with Section 2.2(d) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock the Company 2007 Warrants as the registered legal holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectWarrants.
Appears in 1 contract
Sources: Arrangement Agreement (L-1 Identity Solutions, Inc.)
Arrangement. Commencing on As soon as practicable following the Effective Timedate hereof, the parties shall proceed to effect an arrangement under section 193 of the ABCA in accordance with and subject to the terms and conditions of this Agreement and the Plan of Arrangement, pursuant to which (among other things), the following transactions shall occur and shall be deemed to occur in the following order without set out in the Plan of Arrangement and with any further authorization, act or formality necessary modification for any exercise of or by the Company, Parent or any other PersonDissent Rights:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share the Lone Pine corporate group and Company Common Share outstanding immediately prior to the Effective Time shareholdings shall be reorganized such that: (i) Newco shall become the direct or indirect parent of Lone Pine Delaware, as more particularly provided in the Lone Pine Delaware Agreement; and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number (ii) Newco shall become the ultimate parent of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.Lone Pine;
(b) Upon Newco will, directly or indirectly, acquire all of the transfer outstanding Arsenal Shares;
(c) Lone Pine and Arsenal (or an amalgamation successor thereto, as applicable) shall amalgamate to form Amalco, which shall be a direct and indirect wholly-owned subsidiary of all Company Shares to ParentNewco;
(d) in connection with the foregoing, and immediately upon completion of the Arrangement:
(i) Lone Pine Shareholders shall receive, in substitution for their Lone Pine Shares (including, for certainty, Lone Pine Shares issued pursuant to the exercise, conversion, exchange, settlement, redemption or surrender of Lone Pine Incentive Awards prior to the Effective Time), Newco Shares in such number as reflects the Lone Pine Proportionate Interest;
(ii) Arsenal Shareholders shall receive, in substitution for their Arsenal Shares (including, for certainty, Arsenal Shares issued pursuant to the exercise, conversion, exchange, settlement, redemption or surrender of Arsenal Share Awards or Arsenal Options prior to the Effective Time), Newco Shares in such number as reflects the Arsenal Proportionate Interest, all on a tax effective basis for the Lone Pine Shareholders and the Arsenal Shareholders;
(e) each Lone Pine Incentive Award that is outstanding at the Effective Time, shall be exchanged for an obligation of Newco (a "Replacement Lone Pine RSU") on substantially the same terms and conditions as are applicable to the Lone Pine Incentive Award (including with respect to vesting), except that:
(i) for each Lone Pine Common Share or each Lone Pine Preferred Share to which the holder of such Company Shares shall cease would otherwise be entitled to be issued on settlement and redemption of the Lone Pine Incentive Award, the holder shall instead be entitled to be issued (from treasury), on settlement of such Company the Replacement Lone Pine RSU after the Effective Time, Newco Shares according to the same ratios at which Newco Shares are issued at the Effective Time in consideration for then-outstanding Lone Pine Common Shares and such holder’s name shall be removed from the applicable securities register of Company Lone Pine Preferred Shares;
(ii) legal and beneficial title the holder of the Replacement Lone Pine RSU shall not be entitled to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered receive any shares in the applicable securities register capital stock of Lone Pine Delaware in connection with the Company as the sole shareholder settlement and redemption thereof;
(iii) no fractional shares of Parent Common Stock shall be each Replacement Lone Pine RSU issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction respect of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option Lone Pine Incentive Award that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable vested in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately terms prior to the Effective Time, except to shall be settled and redeemed, without any further action of the extent such Company Unexercised Option (either holder, on the 15th trading day following the Effective Date through the issuance by its terms or Newco of the underlying Newco Shares based on a fair market value of the Newco Shares determined by the terms volume weighted average trading price of another Contractthe Newco Shares on the TSX for the preceding ten (10) provides for acceleration trading days; and
(iv) each Replacement Lone Pine RSU issued in respect of vesting thereof. Each Company Unexercised Option shall, a Lone Pine Incentive Award that was not vested in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent terms prior to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) settled and redeemed within 15 days of the Canadian Tax Act and vesting date, through the equivalent provisions under applicable provincial law;
issuance by Newco of the underlying Newco Shares based on a fair market value of the Newco Shares determined by the volume weighted average trading price of the Newco Shares on the TSX for the preceding ten (vi10) The Company Option Plan shall be cancelledtrading days; and
(viif) without any action on each Arsenal Option and each Arsenal Share Award that is outstanding at the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant Effective Time shall be surrendered to Arsenal and terminated as of the Closing and shall be of for no further force or effectconsideration.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order as set out below without any further authorization, act or formality of or by formality, in each case effective as at two minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Sharethe Company shall lend an amount equal to the Loan Amount to the Purchaser, Class B Convertible Preferred Shareand the Purchaser shall deliver to the Company a duly issued and executed demand promissory note to evidence such loan and the full amount of such loan shall be immediately deposited by the Company at the direction of the Purchaser with the Depositary to be held in a segregated trust account by the Depositary for the purpose of paying the Cash Consideration for the Common Shares;
(b) each of the Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised shall be deemed to have been transferred without any further act or formality to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3, Class C Convertible Preferred Share and:
(i) such Dissenting Holder shall cease to be the holder of such Common Shares and to have any rights as a Company Common Shareholder other than the right to be paid fair value for such Common Shares as set out in Section 3.1;
(ii) such Dissenting Holder’s name shall be removed as the holder of such Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Common Shares free and clear of all Liens (other than the right to be paid fair value for such Common Shares as set out in Section 3.1), and shall be entered in the register of Common Shares maintained by or on behalf of the Company; and
(c) each Common Share outstanding immediately prior to the Effective Time shall be (other than Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised under Section 2.3(b) and any Common Shares held by the Purchaser or any affiliates thereof) shall, without any further action by or on behalf of any Company Common Shareholder, be deemed to be irrevocably assigned and transferred by the holder thereof to Parent the Purchaser in exchange forfor the Consideration, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:and
(i) each holder of such Company Common Shares shall cease to be the holder thereof and to have any rights as a Company Common Shareholder other than the right to be paid the Consideration per Common Share in accordance with this Plan of Arrangement;
(ii) the name of each such Company Shares and such holder’s name holder shall be removed from the applicable securities register of Company Shares;the Common Shares maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and the Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Common Shares free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, all Liens and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders the Common Shares maintained by or on behalf of Parent Common Stock as the registered holder thereof;Company.
(vd) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to at the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a Replacement Option to acquire such number of whole shares of Parent Common Stock Purchaser Shares as is equal to the product of to: (xA) the that number of Company Common Shares that would be were issuable upon exercise of the such Company Unexercised Option immediately prior to the Effective Time Time, multiplied by (yB) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common StockPurchaser Shares, and (ii) the per share at an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Purchaser Share equal to the quotient equal to greater of (xi) the per share quotient determined by dividing: (X) the exercise price for per Common Share at which such Company Unexercised Option was exercisable immediately prior to the Effective Time divided Time, by (yY) the Option Exchange Ratio, rounded up to the nearest whole cent cent, and (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following ii) such minimum amount that meets the Effective Time as to the same percentage requirements of paragraph 7(1.4)(c) of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereofTax Act. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the All terms and conditions of exercise a Replacement Option, including the term to expiry, vesting, conditions to and manner of such exercising, shall be the same as the Company Unexercised Option for which it was exchanged, and any certificate or option agreement previously evidencing the Company Option shall thereafter evidence and be determined in deemed to evidence such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawReplacement Option;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Arrangement Agreement (Aphria Inc.)
Arrangement. Commencing on at the Effective Time, except as noted below, the following shall occur and shall be deemed to occur in the following order order, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company all Common Share outstanding immediately prior to the Effective Time Shares held by Dissenting Shareholders shall be and be deemed to be irrevocably have been transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer free and clear of all Company Shares Liens) to Parent:the Company; and
(i) each holder of such Company Shares Dissenting Shareholders shall cease to be the holder holders of such Company Common Shares and cease to have any rights as Shareholders other than the right to be paid the fair value for such holder’s Common Shares as set out in Article 4;
(ii) such Dissenting Shareholder shall cease to be a Shareholder, and the name of such Dissenting Shareholder shall be removed from the applicable securities register of Company Shares;holders of Common Shares maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company transferred Common Shares will vest in Parent and Parent will be and then be deemed to be redeemed and cancelled by the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereofCompany;
(iiib) no fractional shares of Parent subject to Section 3.3, each outstanding Common Stock Share (other than those held by Dissenting Shareholders) shall be issued deemed to be assigned and transferred (free and clear of all Liens) to Teranga in connection with exchange for the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing DateConsideration;
(ivc) with respect to each share of Parent Common the replacement stock options that were issued by Teranga under the Roll-over Stock issued to a former holder of Company Shares, the name of such holder Option Agreements shall be entered in deemed to have been issued under the register of holders of Parent Common Teranga Stock as the registered holder thereof;
(v) without any action on the part of ParentOption Plan, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Roll-over Stock Option Plan Agreements, without any further action of the parties to the Roll-over Stock Option Agreements or the Company;
(d) Oromin and NewCo will merge and continue as one company (“Amalco”) with the same effect as if they had amalgamated under Section 273 of the BCBCA and with effect under Section 282 of the BCBCA; and
(e) from and after the Effective Date, at the time of the step contemplated in exchange for such cancellation, such holder shall receive an option to purchase Section 2.3(d):
(i) the shares of Parent NewCo shall be cancelled on the amalgamation without any repayment of capital in respect of such shares;
(ii) the stated capital of the Amalco common shares will be an amount equal to the “paid-up capital”, as that term is defined in the Tax Act, attributable to the Common Stock with substantially Shares immediately prior to the same terms Amalgamation; and
(iii) Amalco shall have, as its notice of articles and conditions (including articles, the notice of articles and articles of the Company.
5. Except as expressly amended herein, all other terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were the Arrangement Agreement and the Plan of Arrangement shall remain in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option full force and effect.
6. This Agreement will be exercisable (or will become exercisable governed by and interpreted and enforced in accordance with its terms) solely for a number the laws of whole shares the Province of Parent Common Stock equal Ontario and the federal laws of Canada applicable therein. Each Party irrevocably attorns and submits to the product of (x) the number of Company Common Shares that would be issuable upon exercise exclusive jurisdiction of the Company Unexercised Option immediately prior Ontario courts situated in the City of Toronto and waives objection to the Effective Time multiplied by (y) the Option Exchange Ratiovenue of any proceeding in such court or that such court provides an inconvenient forum. This Agreement may be executed in counterparts, rounded down to the nearest whole number each of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option which shall be vested immediately following the Effective Time as deemed to be an original and all of which shall together constitute one and the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Timeinstrument. The exercise price under each Company Unexercised Option, the number Parties may rely on copies of shares for this Agreement which are delivered by telecopier or electronic mail as if such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectcopies were originals.
Appears in 1 contract
Sources: Amending Agreement
Arrangement. Commencing on 3.1 On the Effective TimeDate, subject to the provisions of Article 5 hereof, the following shall will occur and shall will be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common each issued Cangold Share outstanding immediately prior to the Effective Time shall be and held by a Cangold Shareholder in respect of which Dissent Rights have been validly exercised will be deemed to be irrevocably have been transferred without any further act or formality, to Parent Great Panther, free and clear of any liens, claims and encumbrances in exchange for, consideration for the right to receive the consideration in each case, that number of shares of Parent Common Stock as determined the amount and payable in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to ParentArticle 6, and:
(i) each holder of such Company Shares shall Cangold Shareholder will cease to be the registered holder of such Company Dissenting Shares and will cease to have any rights as registered holders of such holder’s name shall Cangold Shares other than the right to be removed from the applicable securities register of Company Sharespaid fair value for such Dissenting Shares as set out in Section 6.2(a);
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent Cangold Shareholder’s name will be and removed as the registered holder of such Dissenting Shares from the registers of Cangold Shares maintained by or on behalf of Cangold; and
(iii) Great Panther will be deemed to be the transferee and legal and beneficial owner of such Company Dissenting Shares, free and clear of any liens, claims and encumbrances; and
(b) immediately thereafter, each issued and outstanding Cangold Share (other than (i) any Cangold Share in respect of which a registered Cangold Shareholder has validly exercised his, her or its Dissent Right and (ii) Cangold Shares and held by Great Panther) will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangementdeemed to have been transferred to, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent)acquired by Great Panther, without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action act or formality on the part of Parentthe holder of such Cangold Share or Great Panther, the Company or the holders free and clear of Company Optionsall liens, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding claims and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan andencumbrances, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock Great Panther Shares equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, provided that the aggregate number of Great Panther Shares payable to any Cangold Shareholder, if calculated to include a fraction of a Great Panther Share, will be rounded down to the nearest whole number of shares of Parent Common StockGreat Panther Share, with no consideration being paid for the fractional share, and (ii) the per share exercise price for name of each such Cangold Shareholder will be removed from the shares register of Parent Common Stock issuable upon exercise holders of Cangold Shares and added to the register of holders of Great Panther Shares, and Great Panther will be recorded as the registered holder of such Company Unexercised Option Cangold Shares so exchanged and will be equal deemed to be the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting legal and beneficial owner thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Arrangement. Section 3.1 The Arrangement Commencing on at the Effective Time, each of the following events set out below shall occur and shall be deemed to occur in the following order sequence, in each case without any further authorization, act or formality on the part of or by any Person:
(1) at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach Dissenting Share held by an Aphria Dissenting Shareholder who is ultimately determined to be entitled to be paid the fair value of the Dissenting Shares in respect of which such Aphria Dissenting Shareholder has exercised Dissent Rights shall be, Class B Convertible Preferred Shareand shall be deemed to be, Class C Convertible Preferred transferred by the holder thereof, without any further act or formality on its part, to Aphria (free and clear of all Liens) and such Aphria Dissenting Shareholder will cease to be the holder thereof or to have any rights as a holder in respect of such Dissenting Share other than the right to be paid the fair value of such Dissenting Share determined and Company Common payable in accordance with Article 4; and
(b) at the same time as the step in Section 3.1(b)(i) occurs, the name of each Aphria Dissenting Shareholder shall be removed from the register of the Aphria Shares and such Dissenting Shares shall be automatically cancelled as of the Effective Date;
(2) at the same time as the steps in Section 3.1(a) occur:
(a) each Aphria Share outstanding immediately prior to the Effective Time shall be and be deemed (other than Dissenting Shares held by Aphria Dissenting Shareholders who are ultimately determined to be irrevocably transferred entitled to Parent in exchange for, in each case, that number be paid the fair value of shares of Parent Common Stock their Dissenting Shares as determined in accordance with Article 4), shall be, and shall be deemed to be, transferred by the formula set out on Exhibit A attached hereto.holder thereof to Tilray (free and clear of all Liens) in exchange for issuance of the Share Consideration;
(b) Upon at the transfer of all Company Shares to Parent:
(isame time as the step in Section 3.1(b)(i) each occurs, the Amended Tilray Omnibus Plan becomes effective and the holder of such Company Shares each Aphria Share transferred to Tilray pursuant to Section 3.1(b)(i) shall cease to be the holder thereof, or to have any rights as a holder thereof other than the right to receive the Share Consideration issuable in respect of such Company Shares each Aphria Share held pursuant to Section 3.1(b)(i) and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) the Aphria Shares and legal and beneficial title to each such Company Shares will vest in Parent Aphria Share shall be transferred to Tilray and Parent Tilray will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares Aphria Share (free and clear of any Liens) and will be entered in the applicable central securities register of the Company Aphria as the sole shareholder holder thereof; and
(c) Tilray will be the holder of all of the outstanding Aphria Shares;
(iii3) no fractional shares of Parent Common Stock shall be issued immediately after the steps in connection with the ArrangementSection 3.1(b) occur:
(a) each Aphria Option, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent)extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without interestany further act or formality and free and clear of all Liens, determined by multiplying such fraction by the closing price of for a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised stock option (a “Company Unexercised Replacement Option”) shall be cancelled in accordance with to purchase a number of Tilray Shares equal to the terms product of the Company Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares issuable on exercise of such Aphria Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest next whole number of shares of Parent Common Stock, and (iiTilray Shares) the per share for an exercise price for per Tilray Share (rounded up to the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be nearest whole cent) equal to the quotient equal to (x) the exercise price per share exercise price for of such Company Unexercised Aphria Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded down to two decimal places, and the Aphria Options shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Options shall be the same as the terms and conditions of the Aphria Option for which it is exchanged except that such Replacement Options shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria Options by Aphria Securityholders resident in Canada who acquired Aphria Options by virtue of their employment. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option held by such an Aphria Securityholder will be increased such that the In-The-Money Amount of the Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the Aphria Option immediately before the exchange. For any Aphria Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, it is intended that such exchange will comply with Treasury Regulation Section 1.424(1)(a). For any Aphria Option that is a nonqualified option held by a US taxpayer, it is intended that such exchange will be implemented in a manner intended comply with Section 409A of the Code. Any document previously evidencing the Aphria Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Options shall be issued;
(b) each Aphria RSU, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an award of restricted share units granted by Tilray (the “Replacement RSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such Aphria RSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria RSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement RSUs shall be the same as the terms and conditions of the Aphria RSU for which it is exchanged except that such Replacement RSU shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria RSUs shall thereafter evidence and be deemed to evidence such Replacement RSUs and no certificates evidencing the Replacement RSUs shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria RSUs by Aphria Securityholders resident in Canada who acquired Aphria RSUs by virtue of their employment;
(c) each Aphria DSU, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an award of deferred share units granted by Tilray (the “Replacement DSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such Aphria DSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria DSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement DSUs shall be the same as the terms and conditions of the Aphria DSU for which it is exchanged except that such Replacement DSU shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria DSUs shall thereafter evidence and be deemed to evidence such Replacement DSUs and no certificates evidencing the Replacement DSUs shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria DSUs by Aphria Securityholders resident in Canada who acquired Aphria DSUs by virtue of their employment ;
(d) each 2016 Aphria Warrant, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a warrant (a “Replacement Warrant”) to purchase a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares issuable on exercise of such Aphria Warrant immediately prior to the Effective Time for an exercise price per Tilray Share equal to the exercise price per share of such Aphria Warrant immediately prior to the Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a “Parent Replacement Option”). Each Company Unexercised Option Warrant being exercisable for a fraction of a Tilray Share, then the number of Tilray Shares subject to such Replacement Warrant shall be vested immediately following the Effective Time as rounded down to the same percentage next whole number of Tilray Shares) and the 2016 Aphria Warrants shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the total number Replacement Warrants shall be the same as the terms and conditions of shares subject thereto the 2016 Aphria Warrant for which it is exchanged. Any document previously evidencing a 2016 Aphria Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued;
(e) other than the 2016 Aphria Warrants, each Aphria Warrant shall, without any further action on the part of any holder of Aphria Warrant, be continued on the same terms and conditions as it was vested were applicable immediately prior to the Effective Time, except that, pursuant to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides the Aphria Warrant Indenture, the terms of the Aphria Warrants shall be amended so as to substitute for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be the Aphria Shares subject to further adjustment such Aphria Warrants such number of Tilray Shares equal to reflect any stock split, division or subdivision (A) the number of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent Aphria Shares subject to the Aphria Warrants immediately prior to the Effective Time. The exercise price under each Company Unexercised Option, multiplied by (B) the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as Exchange Ratio, rounded down to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawtwo decimal places;
(vif) The Company Option the Aphria Omnibus Incentive Plan and the Aphria Warrant Indenture shall be cancelledterminated and, for greater certainty, all rights to receive any securities of the Aphria formerly held by Aphria Securityholders shall be extinguished; and
(vii4) without no person shall have any action on rights, liabilities or other obligations in respect of the part share capital of Parent, the Company or the Aphria other than Tilray and each holder of that certain warrant Aphria Shares, Aphria Options, Aphria RSUs, Aphria DSUs or 2016 Aphria Warrants outstanding immediately prior to purchase Company Common Shares dated as of October 5the Effective Time, 2007 issued by the Company (the “Warrant”)with respect to each step set out above applicable to such holder, the Warrant shall be terminated as of deemed, at the Closing time such step occurs, to have executed and shall be of no further force delivered all consents, releases, assignments and waivers, statutory or effectotherwise, required to transfer all Aphria Shares, Aphria Options, Aphria RSUs, Aphria DSUs or 2016 Aphria Warrants held by such holder in accordance with such step.
Appears in 1 contract
Sources: Arrangement Agreement (Aphria Inc.)
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach outstanding ValGold Share held by a Dissenting Shareholder will be irrevocably assigned and transferred by the holder thereof to Metalla, Class B Convertible Preferred Sharewithout any further act or formality and free and clear of all liens, Class C Convertible Preferred Share claims and Company Common Share outstanding immediately prior encumbrances, and Metalla shall thereupon be obliged to pay to such shareholder the Effective Time shall be and be deemed amount therefor determined to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined payable in accordance with the formula set out on Exhibit A attached hereto.Article 3;
(b) Upon each ValGold Option, to the transfer extent it has not been exercised as of all Company Shares to Parent:
the Effective Date (iwhether vested or unvested) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares have fully vested and will be entered in exchanged by the applicable securities register of the Company as the sole shareholder holder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interestany further act or formality and free and clear of all liens, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior claims and encumbrances, for (subject to the Closing Date;
(ivSection 2.5) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock Metalla Shares equal to the product of (xi) the number of Company Common Shares that would be issuable upon exercise quotient of the Company Unexercised Option immediately prior to In-the- Money Amount divided by the Effective Time ValGold Deemed Share Price, multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share Exchange Ratio, and the ValGold Option shall thereupon, without any further action by or on behalf of the ValGold Optionholder, be deemed to be disposed of and cancelled and with respect to such ValGold Option, the holder thereof will cease to have any rights as a holder in respect of such ValGold Option, and all option agreements, grants and similar instruments relating thereto will be cancelled. To the extent that the product of such calculation, with respect to any given ValGold Option, is not a positive number, such ValGold Option shall be cancelled for no consideration;
(c) each outstanding ValGold Share (except ValGold Shares held by Metalla or a Dissenting Shareholder) will be irrevocably assigned and transferred by the holder thereof to Metalla, without any further act or formality and free and clear of all liens, claims and encumbrances, in exchange for (subject to Section 2.5) that number of fully paid and non-assessable Metalla Shares equal to the Exchange Ratio;
(d) each ValGold Warrant, to the extent it has not been exercised as of the Effective Date, will, in accordance with the existing reorganization provisions of the ValGold Warrants and without any further act or formality, represent only a right to purchase on exercise price for in accordance with its terms a number of Metalla Shares equal (subject to Section 2.5) to the shares product of Parent Common Stock the Exchange Ratio multiplied by the number of ValGold Shares issuable upon on exercise of such Company Unexercised Option will be ValGold Warrant for an exercise price per Metalla Share equal to the quotient equal to (x) the exercise price per share exercise price for of such Company Unexercised Option immediately prior to the Effective Time ValGold Warrant divided by (y) the Option Exchange Ratio, Ratio and rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Timecent. The term to expiry, conditions to and manner of exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the other terms and conditions of exercise of such Company Unexercised Option the ValGold Warrants shall remain the same with respect to the right to purchase Metalla Shares accordingly. The ValGold Warrants shall therefore evidence only a right to purchase Metalla Shares in accordance with these terms, and no amended certificates with respect to ValGold Warrants shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawissued;
(vie) The Company Option Plan with respect to each ValGold Share transferred and assigned in accordance with Section 2.3(a) or Section 2.3(b):
(i) the registered holder thereof shall cease to be the registered holder of such ValGold Share and the name of such registered holder shall be cancelledremoved from the register of ValGold Shareholders as of the Effective Time; and
(viiii) without any action on Metalla will be the part of Parent, the Company or the legal and beneficial holder of that certain warrant to purchase Company Common Shares dated as such ValGold Share and the register of October 5, 2007 issued by the Company (the “Warrant”), the Warrant ValGold Shareholders shall be terminated as revised accordingly; and
(f) each holder of ValGold Shares, ValGold Options and ValGold Warrants with respect to each step set out above applicable to such holder, will be deemed, at the Closing time such step occurs, to have executed and shall be of no further force delivered all consents, releases, assignments and waivers, statutory or effectotherwise, required to transfer and assign such ValGold Share, ValGold Option or ValGold Warrant.
Appears in 1 contract
Sources: Arrangement Agreement (Metalla Royalty & Streaming Ltd.)
Arrangement. Commencing on at the Effective Time, in five minute increments each of the following events shall occur and shall be deemed to occur consecutively in the following order order, except where noted, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred TransGlobe Option outstanding at the Effective Time (whether vested or unvested), notwithstanding the terms of the TransGlobe Option Plan, shall be, and shall be deemed to be, without further action by or on behalf of a holder of TransGlobe Options, fully and unconditionally vested and exercisable, and shall be surrendered and transferred to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to, for each TransGlobe Share for which the TransGlobe Option may be exercised, the amount (if any) by which (x) the product of the Closing VWAP multiplied by the Exchange Ratio exceeds (y) the Exercise Price thereof and for greater certainty, where such amount is zero or negative, none of TransGlobe, VAALCO, AcquireCo or the Depositary shall be obligated to pay the holder of such TransGlobe Option any amount in respect of such TransGlobe Option, and
(i) the TransGlobe Options so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(ii) the holders of all such TransGlobe Options shall cease to be holders of TransGlobe Options and to have any rights as holders of TransGlobe Options other than the right to receive the consideration to which they are entitled pursuant to this Section 3.1(a) and such holders’ names shall be removed as the holders from the register of TransGlobe Options maintained by or on behalf of TransGlobe;
(iii) any agreement, certificate or other document evidencing the TransGlobe Options or the right of a holder thereof to any such TransGlobe Options shall be void and of no further force or effect as of such time and none of TransGlobe, VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto other than the obligation of TransGlobe to pay the consideration to which the holders of the TransGlobe Options are entitled to receive pursuant to this Section 3.1(a); and
(iv) the TransGlobe Option Plan shall be terminated and of no further force and effect.
(b) Notwithstanding the terms of the TransGlobe DSU Plan, the “Final Payment Date” (as defined in the TransGlobe DSU Plan) of each TransGlobe Surrendered DSU shall be, and shall be deemed to be, the effective time of this Section 3.1(b) and each TransGlobe Surrendered DSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, without further action by or on behalf of a holder of TransGlobe Surrendered DSUs, fully and unconditionally vested, and settled and paid by surrender and transfer from the holder thereof to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to the product of the Closing VWAP multiplied by the Exchange Ratio for each TransGlobe Surrendered DSU, and
(i) the TransGlobe Surrendered DSUs so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(ii) the holders of all such TransGlobe Surrendered DSUs shall cease to be holders of TransGlobe Surrendered DSUs, to have any rights as holders of TransGlobe Surrendered DSUs other than the right to receive the consideration to which they are entitled pursuant to this Section 3.1(b) and such holders’ names shall be removed as the holders from the register of TransGlobe DSUs maintained by or on behalf of TransGlobe; and
(iii) any agreement, certificate or other document evidencing the TransGlobe Surrendered DSUs or the right of a holder thereof to any such TransGlobe Surrendered DSUs shall be terminated and of no further force or effect as of such time and none of TransGlobe, VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto other than the obligation of TransGlobe to pay the consideration to which the holders of the TransGlobe Surrendered DSUs are entitled to receive pursuant to this Section 3.1(b).
(c) Notwithstanding the terms of the TransGlobe PSU Plan, each TransGlobe Surrendered PSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, without further action by or on behalf of a holder of TransGlobe Surrendered PSUs, fully and unconditionally vested at the TransGlobe PSU Vesting Percentage, and surrendered and transferred by the holder thereof to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to the product of the Closing VWAP multiplied by the Exchange Ratio for each TransGlobe Surrendered PSU, and
(i) the TransGlobe Surrendered PSUs so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(ii) the holders of all such TransGlobe Surrendered PSUs shall cease to be holders of TransGlobe Surrendered PSUs, to have any rights as holders of TransGlobe Surrendered PSUs other than the right to receive the consideration to which they are entitled pursuant to this Section 3.1(c) and such holders’ names shall be removed as the holders from the register of TransGlobe PSUs maintained by or on behalf of TransGlobe; and
(iii) any agreement, certificate or other document evidencing the TransGlobe Surrendered PSUs or the right of a holder thereof to any such TransGlobe Surrendered PSUs shall be terminated and of no further force or effect as of such time and none of TransGlobe, VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto other than the obligation of TransGlobe to pay the consideration to which the holders of the TransGlobe Surrendered PSUs are entitled to receive pursuant to this Section 3.1(c).
(d) Notwithstanding the terms of the TransGlobe RSU Plan, the “Distribution Date” (as defined in the TransGlobe RSU Plan) of each TransGlobe Surrendered RSU shall be, and shall be deemed to be, the effective time of this Section 3.1(d) and each TransGlobe Surrendered RSU outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, without further action by or on behalf of a holder of TransGlobe Surrendered RSUs, fully and unconditionally vested, and surrendered and transferred by the holder thereof to TransGlobe (free and clear of any Liens) for cancellation in exchange for a cash payment from TransGlobe equal to the product of the Closing VWAP multiplied by the Exchange Ratio for each TransGlobe Surrendered RSU, and
(i) the TransGlobe Surrendered RSUs so surrendered and transferred and any agreements related thereto shall be, and shall be deemed to be, cancelled and extinguished without any further action on the part of the holder thereof or TransGlobe;
(ii) the holders of all such TransGlobe Surrendered RSUs shall cease to be holders of TransGlobe Surrendered RSUs, to have any rights as holders of TransGlobe Surrendered RSUs other than the right to receive the consideration to which they are entitled pursuant to this Section 3.1(d) and such holders’ names shall be removed as the holders from the register of TransGlobe RSUs maintained by or on behalf of TransGlobe;
(iii) any agreement, certificate or other document evidencing the TransGlobe Surrendered RSUs or the right of a holder thereof to any such TransGlobe Surrendered RSUs shall be terminated and of no further force or effect as of such time and none of TransGlobe, VAALCO nor AcquireCo shall have any further liabilities or obligations to the former holders thereof with respect thereto other than the obligation of TransGlobe to pay the consideration to which the holders of the TransGlobe Surrendered RSUs are entitled to receive pursuant to this Section 3.1(d);
(e) Each Dissent Share shall be deemed to be transferred and assigned by such Dissenting Shareholder, without any further act of formality on its part, to AcquireCo (free and clear of any Liens) in accordance with, and in exchange for the consideration contemplated in, Article 4 and:
(i) such Dissenting Shareholder shall cease to be, and shall be deemed to cease to be, the registered holder of each such Dissent Share and the name of such registered holder shall be, and shall be deemed to be, removed from the register of TransGlobe Shareholders in respect of each such Dissent Share, Class B Convertible Preferred and at such time each Dissenting Shareholder will have only the rights set out in Section 4.1;
(ii) such Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Dissent Share; and
(iii) AcquireCo shall be and shall be deemed to be the holder of all of the outstanding Dissent Shares (free and clear of all Liens) and the central securities register of TransGlobe shall be, Class C Convertible Preferred Share and Company Common shall be deemed to be, revised accordingly.
(f) Each TransGlobe Share outstanding immediately prior to the Effective Time (other than any TransGlobe Share held by VAALCO, AcquireCo or any of their respective affiliates or any Dissent Shares) shall be and be deemed to be irrevocably transferred and assigned by the holder thereof, without any further act or formality on its part, to Parent AcquireCo (free and clear of any Liens) in exchange forfor the Consideration, in each casesubject to Sections 3.2 and 5.3, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:and
(i) each the registered holder thereof shall cease to be, and shall be deemed to cease to be, the registered holder of each such Company Shares TransGlobe Share and the name of such registered holder shall cease be, and shall be deemed to be, removed from the register of TransGlobe Shareholders;
(ii) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such TransGlobe Share; and
(iii) AcquireCo shall be and shall be deemed to be the holder of such Company all of the outstanding TransGlobe Shares (free and such holder’s name shall be removed from clear of all Liens) and the applicable central securities register of Company Shares;
(ii) legal TransGlobe shall be, and beneficial title to such Company Shares will vest in Parent and Parent will be and shall be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;be, revised accordingly.
(iiig) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled Pursuant to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Tennessee DSU Plan and(including but not limited to sections 3.1 and 4.8), in exchange for such cancellation, such holder each one TransGlobe Continuing DSU shall receive an option to purchase shares of Parent Common Stock with substantially be continued on the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect applicable immediately prior to the Effective Time (including any repurchase rights or vesting provisionsexcept that, if applicable)pursuant to the terms of the Amended and Restated TransGlobe DSU Plan, except that (i) each Company Unexercised Option will the terms of such TransGlobe Continuing DSU shall be exercisable (or will become exercisable in accordance with its terms) solely amended so as to substitute for a the TransGlobe Shares underlying such TransGlobe Continuing DSU such number of VAALCO Shares (rounded down to the nearest whole shares of Parent Common Stock number) equal to the product of (xA) the number of Company Common TransGlobe Shares that would underlying such TransGlobe Continuing DSU, multiplied by (B) the Exchange Ratio, and all such TransGlobe Continuing DSUs shall continue to be issuable upon exercise governed by and subject to the terms and conditions of the Company Unexercised Option Amended and Restated TransGlobe DSU Plan.
(h) Simultaneously with the amendment in Section 3.1(g), pursuant to the terms of the Tennessee PSU Plan (including but not limited to sections 3.1, 4.6, 4.12 and 4.13), each one TransGlobe Continuing PSU shall be continued on the same terms and conditions as were applicable immediately prior to the Effective Time multiplied by except that, pursuant to the terms of the Amended and Restated TransGlobe PSU Plan, the terms of such TransGlobe Continuing PSU shall be amended so as to substitute for the TransGlobe Shares underlying such TransGlobe Continuing PSU such number of VAALCO Shares (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (iinumber) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (xA) the per share exercise price for number of TransGlobe Shares underlying such Company Unexercised Option TransGlobe Continuing PSU, multiplied by (B) the Exchange Ratio, and all such TransGlobe Continuing PSUs shall continue to be governed by and subject to the terms and conditions of the Amended and Restated TransGlobe PSU Plan.
(i) Simultaneously with the amendment in Section 3.1(g), pursuant to the terms of the Tennessee RSU Plan (including but not limited to sections 3.1, 4.11 and 4.12), each one TransGlobe Continuing RSU shall be continued on the same terms and conditions as were applicable immediately prior to the Effective Time divided by except that, pursuant to the terms of the Amended and Restated TransGlobe RSU Plan, the terms of such TransGlobe Continuing RSU shall be amended so as to substitute for the TransGlobe Shares underlying such TransGlobe Continuing RSU such number of VAALCO Shares (y) the Option Exchange Ratio, rounded up down to the nearest whole cent number) equal to (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another ContractA) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which TransGlobe Shares underlying such Company Unexercised Option is exercisable TransGlobe Continuing RSU, multiplied by (B) the Exchange Ratio, and all such TransGlobe Continuing RSUs shall continue to be governed by and subject to the terms and conditions of exercise of such Company Unexercised Option shall the Amended and Restated TransGlobe RSU Plan. The events provided for in this Section 3.1 will be determined in such manner so as deemed to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by procedures related thereto may not be completed until after the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Arrangement. Commencing on 3.1 At the Effective Time, or as otherwise indicated, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred ShareSubject to Section 4.4 each of the issued and outstanding AltaRex Common Shares shall be, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably be, transferred to Parent ViRexx (free of any claims) and the holder of AltaRex Common Shares shall receive from ViRexx in exchange for, in for each case, that number AltaRex Common Share one-half of shares of Parent one ViRexx Common Stock as determined in accordance with the formula set out on Exhibit A attached heretoShare.
(b) Upon 40% of the transfer ViRexx Common Shares received by each former holder of all Company AltaRex Common Shares issued pursuant to Parentparagraph 3.1(a) shall be non-transferable and subject to a hold period for a period of six months following the Effective Date.
(c) With respect to each AltaRex Common Share to which paragraph 3.1
(a) applies:
(i) each the holder of such Company Shares thereof shall cease to be the holder of such Company AltaRex Common Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;AltaRex Common Shares as of the Effective Date; and
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be ViRexx shall become, and be deemed to be become, the transferee and legal and beneficial owner holder of such Company AltaRex Common Shares (free of any claims) and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock such shares as the registered holder thereof;thereof as of the Effective Date.
(vd) without Each AltaRex Option that has not been:
(i) duly exercised in full under the terms thereof; or
(ii) duly surrendered in full for termination in a manner reasonably acceptable to ViRexx, immediately prior to the Effective Time shall be, and shall be deemed to be transferred to ViRexx (free of any action on the part of Parentclaims) and in consideration for such transfer, the Company or the holders holder of Company Options, except as otherwise required by applicable Legal Requirements, each Company that AltaRex Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares the number of Parent ViRexx Common Stock with substantially Shares determined by multiplying the same terms and conditions (including the terms and conditions number of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior AltaRex Common Shares subject to the Effective Time (including any repurchase rights or vesting provisionsparticular AltaRex Option by one-half, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent at an exercise price per ViRexx Common Stock Share equal to the product exercise price per share of (x) the particular AltaRex Option multiplied by two. If the foregoing results in an option being issued for a fraction of a ViRexx Common Share then the number of Company ViRexx Common Shares that would subject to such option will be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares ViRexx Common Shares. The terms of Parent Common Stock, and (ii) the per share exercise price all options issued by ViRexx in exchange for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option AltaRex Options shall be vested immediately following the Effective Time as identical in all material respects to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration the AltaRex Options in respect of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;they are issued.
(vie) The Company With respect to each AltaRex Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.which paragraph 3.1
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, except as otherwise noted herein, the following shall occur and shall be deemed to occur sequentially, in the following order order, without any further authorization, act or formality of or by formality, in each case, effective at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred each UNE Share held by a Dissenting Shareholder shall be transferred by the Dissenting Shareholder to UNE, and such Dissenting Shareholder shall cease to have any rights as a UNE Shareholder, other than the right to be paid the fair value of their UNE Shares as set out in Section 4.01;
(b) each UNE Share held by a Former UNE Shareholder, other than (i) UNE Shares held by a Dissenting Shareholder (who is entitled to be paid the fair value of its UNE Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with Section 4.01) and (ii) UNE Shares held by Altima, shall be transferred by the formula set out Former UNE Shareholder to Altima and, in consideration therefor, Altima shall issue to the Former UNE Shareholder Altima Shares on Exhibit A attached hereto.the basis of one fully paid and non-assessable Altima Share for each UNE Share, subject to Section 3.03 and Article 5 hereof;
(bc) Upon the transfer of all Company Shares with respect to Parent:each UNE Share transferred pursuant to Sections 3.01(a) or 3.01(b):
(i) each holder of such Company Shares Former UNE Shareholder shall cease to be the holder of such Company Shares and UNE Share;
(ii) such holderFormer UNE Shareholder’s name shall will be removed from the applicable central securities register of Company Shares;for UNE Shares with respect to such UNE Share; and
(iiiii) legal and beneficial title to such Company Shares UNE Share will vest in Parent Altima, and Parent Altima will be and be deemed to be the transferee and legal and beneficial owner of all such Company UNE Shares and will be entered in the applicable central securities register of for the Company UNE Shares as the sole shareholder holder thereof;; and
(iiid) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company UNE Options and the UNE Stock Option Plan andPlan, in exchange for such cancellation, such each holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect a UNE Option outstanding immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to shall receive one Altima Share upon the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon subsequent exercise of such Company Unexercised UNE Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject in lieu of each UNE Share to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by was theretofore entitled upon such exercise and for the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectsame aggregate consideration payable theretofore.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, each of the following shall occur and shall be deemed to occur sequentially on the Effective Date, in the following order order, without any further authorization, act or formality required on the part of or by the Company, Parent or any other Personperson:
(a) Each Class A Convertible Preferred Shareeach outstanding Company Share held by a Dissenting Shareholder shall be deemed to have been transferred by the holder thereof to Purchaser free and clear of any Liens of any kind whatsoever, Class B Convertible Preferred Shareand:
(i) each such Dissenting Shareholder shall cease to be the holder of such Company Shares and to have any rights as a Company Shareholder other than the right to be paid the fair value of such Company Shares in accordance with Article 4 hereof;
(ii) each such Dissenting Shareholder’s name shall be removed as the holder of such Company Shares from the register of Company Shareholders maintained by or on behalf of Company;
(iii) the Purchaser shall be deemed to be the transferee of such Company Shares free and clear of any Liens of any kind whatsoever (other than the right to be paid fair value for such Company Shares as set out in Section 4.1), Class C Convertible Preferred and shall be entered in the register of Company Shares maintained by or on behalf of Company; and
(iv) Purchaser will be the registered holder of all of the outstanding Company Shares.
(b) each outstanding Company Share and (other than any Company Common Share outstanding immediately prior to the Effective Time Shares held by a Dissenting Shareholder) shall be and be deemed to be irrevocably assigned and transferred by the holder thereof to Parent Purchaser (free and clear of any Liens of any kind whatsoever) in exchange forfor the Consideration, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand:
(i) each holder of such Company Shares shall cease to be the holder thereof and to have any rights as a Company Shareholder other than the right to be paid the Consideration per Company Share in accordance with this Plan of Arrangement;
(ii) the name of each such Company Shares and such holder’s name holder shall be removed from the applicable securities register of the Company Shares;Shares maintained by or on behalf of Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Shares free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iii) no fractional shares all Liens of Parent Common Stock shall be issued in connection with the Arrangement, any kind whatsoever and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders Company Shares maintained by or on behalf of Parent Common Stock as the registered holder thereof;Company; and
(vc) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to at the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a Replacement Option to acquire such number of whole shares of Parent Common Stock Purchaser Shares as is equal to the product of to: (xA) the that number of Company Common Shares that would be were issuable upon exercise of the such Company Unexercised Option immediately prior to the Effective Time Time, multiplied by (yB) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common StockPurchaser Shares, and (ii) the per share at an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Purchaser Share equal to the quotient equal to greater of (xi) the per share quotient determined by dividing: (X) the exercise price for per Company Share at which such Company Unexercised Option was exercisable immediately prior to the Effective Time divided Time, by (yY) the Option Exchange Ratio, rounded up to the nearest whole cent cent, and (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following ii) such minimum amount that meets the Effective Time as to the same percentage requirements of paragraph 7(1.4)(c) of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereofTax Act. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the All terms and conditions of exercise a Replacement Option, including the term to expiry, vesting, conditions to and manner of such exercising, shall be the same as the Company Unexercised Option for which it was exchanged, and any certificate or option agreement previously evidencing the Company Option shall thereafter evidence and be determined in deemed to evidence such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectReplacement Option.
Appears in 1 contract
Sources: Arrangement Agreement (HEXO Corp.)
Arrangement. Commencing on At the Effective Time, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of or by formality, in each case, unless stated otherwise, effective as at two minute intervals starting at the Company, Parent or any other Person:Effective Time (unless otherwise indicated):
(a) Each Class A Convertible Preferred Shareeach Company RSU outstanding at the Effective Time, Class B Convertible Preferred Sharewhether vested or unvested, Class C Convertible Preferred shall be deemed to be vested to the fullest extent, and such Company RSU shall be cancelled in exchange for a cash payment from the Company (made in accordance with Section 5.01(a)) equal to the volume weighted average trading price of one Common Share on the TSXV during the five trading days ending on the last trading day prior to the Effective Date less any amounts withheld pursuant to Section 4.03;
(b) (i) each Company RSU Holder shall cease to be a holder of Company RSUs (ii) such holder’s name shall be removed from each applicable register, (iii) the Company Share Compensation Plan shall be deemed to be amended to remove all references to the Company RSUs and all agreements relating to Company RSUs shall be terminated and shall be of no further force and effect, and (iv) such Company RSU Holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.03 in the manner specified in Article 4;
(c) each of the Common Shares held by Dissenting Company Shareholders in respect of which Dissent Rights have been validly exercised, which Dissent Rights remain valid and have not been withdrawn immediately prior to the Effective Time, shall be deemed to have been transferred without any further act or formality to the Purchaser (free and clear of all Liens) in consideration for the right to be paid by the Purchaser the fair value of their Common Shares in cash in accordance with Article 3, upon which:
(i) such Dissenting Company Shareholders shall cease to be the holders of such Common Shares and to have any rights as Company Shareholders, other than the right to be paid fair value for such Common Shares as set out in Section 3.01;
(ii) such Dissenting Company Shareholders’ names shall be removed as the registered holders of such Common Shares from the registers of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the transferee of such Common Shares free and clear of all Liens, and shall be entered in the registers of Common Shares maintained by or on behalf of the Company;
(d) concurrently with the step described in Section 2.03(c), each Common Share outstanding immediately prior to the Effective Time shall be and Time, other than the Common Shares held by a Dissenting Company Shareholder who has validly exercised such holder’s Dissent Right in respect of such Common Shares, shall, without any further action by or on behalf of a Company Shareholder, be deemed to be irrevocably assigned and transferred by the holder thereof to Parent the Purchaser (free and clear of all Liens) in exchange for, in for the Arrangement Consideration from the Purchaser for each case, that number of shares of Parent such Common Stock as determined Share to be paid in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to ParentArticle 4, and:
(i) each holder of such Company Shares Shareholders shall cease to be the holder registered holders and beneficial owners of such Company Common Shares and to have any rights as Company Shareholders, other than the right to be paid the Arrangement Consideration per Common Share from the Purchaser in accordance with this Plan of Arrangement;
(ii) such holder’s name Company Shareholders’ names shall be removed from the applicable securities register of Company Shares;the Common Shares maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and the Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Common Shares (free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iiiall Liens) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders the Common Shares maintained by or on behalf of Parent Common Stock as the registered holder thereof;Company; and
(ve) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with notwithstanding the terms of the Company Share Compensation Plan and subject to Section 4.1(i), each Company Option Plan andoutstanding at the Effective Time, in exchange for such cancellationwhether vested or unvested, such holder shall receive be deemed to be vested to the fullest extent, will cease to represent an option or other right to acquire Common Shares and shall be deemed to be exchanged for an option (a “Replacement Option”) to purchase shares of Parent Common Stock with substantially from the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) Purchaser the number of Company Common Purchaser Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (iinumber) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (xA) the per share exercise price for Exchange Ratio multiplied by (B) the number of Common Shares subject to such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except at an exercise price per Purchaser Share (rounded up to the extent nearest whole cent) equal to (M) the exercise price per Common Share otherwise purchasable pursuant to such Company Unexercised Option immediately prior to the Effective Time, divided by (either by its N) the Exchange Ratio, exercisable until the original expiry date of such Company Option. Except as set out above, all other terms or and conditions of such Replacement Option, including the conditions to and manner of exercising, will be the same as the Company Option so exchanged, and shall be governed by the terms of another Contract) provides for acceleration of vesting thereof. Each the Company Unexercised Option shallShare Compensation Plan, in accordance with its termsas assumed by the Purchaser, be subject to further adjustment to reflect and any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each document evidencing a Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall thereafter evidence and be determined in deemed to evidence such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectReplacement Option.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharenotwithstanding any vesting or exercise provisions to which a GEO Option might otherwise be subject (whether by contract, Class B Convertible Preferred Sharethe conditions of a grant, Class C Convertible Preferred Share applicable law or the terms of the GEO Option Plan):
(i) each GEO Option issued and Company outstanding at the time referred to in this subsection 3.01(a) will, without any further action by or on behalf of any holder of such GEO Option, be deemed to be fully vested and transferred by the holder thereof to GEO (free and clear of all liens, claims and encumbrances of whatsoever nature) and cancelled in exchange for the Option Consideration, less any amounts withheld pursuant to Section 5.03;
(ii) with respect to each GEO Option, the holder thereof will cease to be the holder of such GEO Option, will cease to have any rights as a holder in respect of such GEO Option or under the GEO Option Plan, such holder’s name will be removed from the register of GEO Options, and all option agreements, grants and similar instruments relating thereto will be cancelled; and
(iii) the GEO Option Plan will be terminated;
(b) contemporaneously with the steps contemplated in subsection 3.01(a), notwithstanding any exercise provisions to which a GEO Warrant might otherwise be subject (whether by contract, the conditions of a grant, or applicable law):
(i) each GEO Warrant issued and outstanding at the time referred to in this subsection 3.01(b) (other than any GEO Warrants held by a Dissenting Warrantholder) will, without any further action by or on behalf of any holder of such GEO Warrant, be transferred by the holder thereof to GEO (free and clear of all liens, claims and encumbrances of whatsoever nature) and cancelled in exchange for the Warrant Consideration, less any amounts withheld pursuant to Section 5.03; and
(ii) with respect to each GEO Warrant, the holder thereof will cease to be the holder of such GEO Warrant, will cease to have any rights as a holder in respect of such GEO Warrant, such holder’s name will be removed from the register of GEO Warrants, and all agreements, grants and similar instruments relating thereto will be cancelled.
(c) all of Spin-out Assets and Liabilities shall be transferred to Spinco by GEO in exchange for the issuance of a particular number of fully-paid and non- assessable Spinco Shares to GEO such that immediately after the foregoing issuance GEO shall hold in aggregate (together with the Spinco Shares held immediately prior to the foregoing issuance) that number of Spinco Shares that is equal to one fifteenth (1/15th) of the number of GEO Common Share Shares that are issued and outstanding immediately prior to the Effective Time (adjusted as provided in Section 3.03 below) less the number of GEO Shares held by Dissenting Shareholders;
(d) NEW GOLD shall loan to GEO an amount equal to the U.S. Tax Code Withholding, to be evidenced by a promissory note repayable on demand;
(e) GEO shall make a capital contribution to Spinco in an amount equal to the U.S. Tax Code Withholding, which Spinco shall use to satisfy the U.S. Tax Code Withholding;
(f) NEW GOLD shall subscribe for that number of Spinco Shares that will result in NEW GOLD holding 13% of the issued and outstanding Spinco Shares for a total of $250,000 in cash;
(g) GEO shall undertake a reorganization of capital within the meaning of section 86 of the Tax Act as follows, and in the following order:
i. The authorized capital of GEO shall be amended by:
A. re-designating the GEO Common Shares as Class B Shares and each certificate representing such an outstanding GEO Common Share shall, as and from the time such re- designation is effective, represent a Class B Share; and
B. the creation of an unlimited number of Class A Shares; and the articles of GEO shall be deemed to be irrevocably transferred amended accordingly;
ii. Each issued Class B Share, other than those held by Dissenting GEO Shareholders, shall be exchanged with GEO for one Class A Share and one fifteenth (1/15th) of a Spinco Share;
iii. The capital of GEO for the outstanding Class A Shares shall be an amount equal to Parent the paid up capital (within the meaning of the Tax Act) of the GEO Class B Shares, less the paid up capital (within the meaning of the Tax Act) of the GEO Class B Shares that is attributable to each issued Class B Share held by Dissenting GEO Shareholders and described in exchange forparagraph 3(h) hereof, in each case, that number and less the fair market value of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached heretoSpinco Shares distributed to GEO Shareholders.
(bh) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name following steps shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.effected contemporaneously:
Appears in 1 contract
Sources: Business Combination Agreement
Arrangement. Commencing on At the Effective Time, unless otherwise specifically provided in this Section 3.02, the following events or transactions shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each the Purchaser shall subscribe for that number of Acquireco Common Shares, at a price of $1.00 per share, equal to the quotient obtained when (A) the fair market value of the Maximum Purchaser Shares and Maximum Cash Consideration is divided by (B) $1.00, and for greater certainty for the purposes of determining variable (A) in relation to the quotient under this Section 3.02(a), the fair market value of the Maximum Purchaser Shares and the Maximum Cash Consideration will be no less than the fair market value of the Class A Convertible Preferred Shares immediately prior to the acquisition of the Class A Shares by Acquireco pursuant to Section 3.02(k), and in connection with such share subscription:
(i) the Purchaser shall be deemed to have directed the Depositary to hold, and the Depositary shall hold, the cash and certificates representing the Purchaser Shares delivered by the Purchaser to the Depositary in accordance with Section 3.05(a)(i) (such cash and Purchaser Shares, collectively, the “Purchaser Consideration”) for and on behalf of Acquireco, in satisfaction of the subscription price payable by the Purchaser for such Acquireco Common Shares; and
(ii) Acquireco shall be deemed to have issued such fully paid and non-assessable Acquireco Common Shares to the Purchaser, and the stated capital account maintained by Acquireco in respect of the Acquireco Common Shares shall be increased, in respect of the Acquireco Common Shares issued pursuant to this Section 3.02(a), by an amount equal to the fair market value of the Purchaser Consideration;
(b) notwithstanding any vesting or exercise provisions to which a Company Option might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each In-the-Money Option issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such In-the-Money Option, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the Option Consideration, and the holder of such In-the-Money Option shall become the holder of the Company Shares comprising such Option Consideration and the central securities register of the Company shall be revised accordingly, but the holder of such Option Consideration shall not be entitled to receive a share certificate or other document representing the Option Consideration;
(ii) each Out-of-the-Money Option issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such Out-of-the-Money Option, be cancelled without any payment therefor;
(iii) with respect to each Company Option:
(A) the holder thereof shall cease to be the holder of such Company Option, and shall cease to have any rights as a holder in respect of such Company Option under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company Options, and
(C) all option agreements, Award Agreements, grants and similar instruments relating thereto shall be cancelled;
(c) notwithstanding any vesting provisions to which a Company RSU might otherwise be subject (whether by contract, the terms and conditions of any Award Agreement or grant, the terms and conditions of the Company 2013 Share Incentive Plan or Company 2016 Stock Option Plan, or applicable law):
(i) each Company RSU issued and outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of any holder of such Company RSU, be deemed to be fully vested and shall be transferred and disposed by the holder thereof to the Company (free and clear of all Encumbrances) and cancelled in exchange for the applicable RSU Consideration, and the holder of such Company RSU shall become the holder of the Company Shares comprising such RSU Consideration and the central securities register of the Company shall be revised accordingly, but the holder of such RSU Consideration shall not be entitled to receive a share certificate or other document representing the RSU Consideration;
(ii) with respect to each Company RSU:
(A) the holder thereof shall cease to be the holder of such Company RSU, and shall cease to have any rights as a holder in respect of such Company RSU under the applicable Company Option Plan,
(B) such holder’s name shall be removed from the register of Company RSUs, and
(C) all Award Agreements, grants and similar instruments relating thereto will be cancelled;
(d) the Company Option Plans shall be terminated;
(e) each Company Share held by a Dissenting Shareholder shall be, and shall be deemed to be, surrendered to the Company by the holder thereof, without any further act or formality by such Dissenting Shareholder, free and clear of all Encumbrances, and each such Company Share so surrendered shall be cancelled and thereupon each Dissenting Shareholder shall cease to have any rights as a holder of such Company Shares other than a claim against the Company in an amount determined and payable in accordance with Article 4 and the name of such Dissenting Shareholder shall be removed from the securities register of holders of Company Shares;
(f) concurrently with the surrender and cancellation of Company Shares held by Dissenting Shareholders pursuant to Section 3.02(e), the stated capital account maintained by the Company in respect of the Company Shares shall be reduced, in respect of the Company Shares cancelled pursuant to Section 3.02(e), by an amount equal to the product obtained when (A) the stated capital of all the issued and outstanding Company Shares immediately prior to the step in Section 3.02(e), is multiplied by (B) a fraction, the numerator of which is the number of Company Shares surrendered and cancelled pursuant to Section 3.02(e), and the denominator of which is the number of issued and outstanding Company Shares immediately prior to the step in Section 3.02(e);
(g) the Company shall transfer all of its entire legal and beneficial right, title and interest in and to the Spinco Property to Spinco in consideration for the issuance by Spinco to the Company of that number of fully paid and non-assessable Spinco Shares (the “Distribution Spinco Shares”) equal to the number of Company Shares issued and outstanding immediately prior to the transfer in this Section 3.02(g) (for the avoidance of doubt, excluding any Company Shares in respect of which Dissenting Shareholders have exercised Dissent Rights), all in accordance with the terms of the Spinco Contribution Agreement;
(h) in the course of a reorganization of the Company’s authorized and issued share capital:
(i) the notice of articles and articles of the Company shall be amended to create a new class of shares without par value, of which an unlimited number may be issued and which shall be designated the “Class A Shares” (the “Class A Shares”), which shall have the special rights and restrictions set forth in Schedule “A” to this Plan of Arrangement;
(ii) each Company Share issued and outstanding immediately before the reorganization of the Company’s share capital pursuant to this Section 3.02(h) (including, without limitation, the Company Shares issued to former holders of In-the-Money Options and Company RSUs pursuant to Section 3.02(b) and Section 3.02(c), respectively, but excluding any Company Shares surrendered and cancelled in accordance with Section 3.02(e)) shall be exchanged with the Company, free and clear of any Encumbrances, for one Class A Share and one Distribution Spinco Share, and upon such exchange:
(A) each such exchanged Company Share shall be cancelled, and the holders of such exchanged Company Shares shall be removed from the Company’s register of holders of Company Shares;
(B) each holder of such exchanged Company Shares shall be entered in the Company’s register of holders of Class B Convertible Preferred ShareA Shares in respect of the Class A Shares issued to such holder;
(C) the Company shall be removed from the Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares; and
(D) each holder of such exchanged Company Shares shall be entered in Spinco’s register of holders of Spinco Shares in respect of the Distribution Spinco Shares exchanged with such holder by the Company;
(iii) concurrently with the exchange in Section 3.02(h)(ii), the stated capital account in respect of the Company Shares shall be reduced by an amount equal to the stated capital of the Company Shares immediately prior to the reorganization in Section 3.02(h), and there shall be added to the stated capital account maintained by the Company in respect of the Class C Convertible Preferred A Shares, in respect of the Class A Shares issued pursuant to Section 3.02(h)(ii), the amount by which (A) the amount by which the stated capital account of the Company Shares is reduced pursuant to this Section 3.02(h)(iii), exceeds (B) the fair market value of the Distribution Spinco Shares transferred to the former holders of Company Shares pursuant to Section 3.02(h)(ii);
(i) the Initial Spinco Share held by the Company shall be cancelled without any repayment thereon, and the Company Common shall be removed from the Spinco register of holders of Spinco Shares;
(j) all of the issued and outstanding Spinco Shares shall be consolidated (the “Spinco Share Consolidation”) on the basis of one post-consolidation Spinco Share for each eight (8) pre-consolidation Spinco Shares held by a holder of Spinco Shares, and any fractional Spinco Shares resulting from such Spinco Share Consolidation shall be cancelled without payment or compensation therefor, and upon such Spinco Share Consolidation the register of holders of Spinco Shares shall be amended to reflect the Spinco Share Consolidation;
(k) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who:
(i) duly and validly completes and delivers the applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive the Combination Consideration in respect of all of such Participating Former Securityholder’s Company Shares;
(ii) has not completed and delivered the applicable Election Form(s) by the Election Deadline or who has otherwise failed to make a valid election to receive the Cash Consideration or the Purchaser Share Consideration is respect of all of such Participating Former Securityholder’s Company Shares; or
(iii) exercises Dissent Rights and is ultimately not entitled, for any reason, to be paid fair value for its Company Shares, shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(k) in exchange for the Combination Consideration Cash and the Combination Consideration Purchaser Shares, and upon such exchange:
(iv) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares,
(v) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the legal and beneficial owner of such Class A Shares, free of all Encumbrances; and
(vi) each such Participating Former Securityholder shall, subject to the provisions of Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the Purchaser Shares payable to such Participating Former Securityholder pursuant to this Section 3.02(k);
(l) each Participating Former Securityholder receiving Class A Shares pursuant to Section 3.02(h)(ii) who duly and validly completes and delivers the applicable Election Form(s) in accordance with Section 3.03 and Section 3.04 electing to receive either the Cash Consideration or the Purchaser Share Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall transfer, and shall be deemed to have transferred, to Acquireco, without any further act or formality by such Participating Former Securityholder, free and clear of all Encumbrances, each Class A Share held by such Participating Former Securityholder immediately prior to the exchange in this Section 3.02(l) in exchange for:
(i) in the case of a Participating Former Securityholder validly electing to receive the Cash Consideration, the Cash Consideration, subject to the provisions of Section 3.02(m); and
(ii) in the case of a Participating Former Securityholder validly electing to receive the Purchaser Share Consideration, the Purchaser Share Consideration, subject to the provisions of Section 3.02(n), and upon such exchange:
(iii) each such Participating Former Securityholder shall be removed from the Company’s securities register of holders of Class A Shares,
(iv) Acquireco shall be entered in the Company’s securities register of holders of Class A Shares as the sole legal and beneficial owner of such Class A Shares, free of all Encumbrances; and
(v) each such Participating Former Securityholder shall, subject to the provisions of Section 3.02(m) or Section 3.02(n), as applicable, and Section 3.06, be entered in the Purchaser’s securities register of holders of Purchaser Shares in respect of the Purchaser Shares, if any, payable to such Participating Former Securityholder;
(m) in the event that (A) the sum of (I) the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Cash, exceeds (B) the Maximum Cash Consideration, each Participating Former Securityholder who validly elects to receive the Cash Consideration in respect of all of such Participating Former Securityholder’s Company Shares shall, notwithstanding Section 3.02(l)(i):
(i) only be entitled to receive the Cash Consideration for that portion of their Class A Shares equal to a fraction, rounded to six decimal places, the numerator of which is the Maximum Cash Consideration minus the aggregate Combination Consideration Cash payable pursuant to Section 3.02(k), and the denominator of which is the Aggregate Elected Cash; and
(ii) be entitled to receive the Purchaser Share Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, a corresponding portion of the Purchaser Share Consideration for any fractional Class A Share included in such remaining portion);
(n) in the event that (A) the sum of (I) the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k) and (II) the Aggregate Elected Purchaser Shares, exceeds (B) the Maximum Purchaser Shares, each Participating Former Securityholder who validly elects to receive the Purchaser Share Consideration shall, notwithstanding Section 3.02(l)(ii):
(i) only be entitled to receive the Purchaser Share Consideration for that portion of their Class A Shares equal to a fraction, rounded to six decimal places, the numerator of which is the Maximum Purchaser Shares minus the aggregate Combination Consideration Purchaser Shares payable pursuant to Section 3.02(k), and the denominator of which is the Aggregate Elected Purchaser Shares; and
(ii) be entitled to receive the Cash Consideration for the remaining portion of their Class A Shares (including, for the avoidance of doubt, any fractional Class A Share included in such remaining portion);
(o) the resignations of the Existing Company Directors, and the appointment of the New Company Directors, shall be deemed to be effective immediately following the transfers of the Class A Shares to Acquireco pursuant to Section 3.02(k) and Section 3.02(l);
(p) upon the resignation of the Existing Company Directors becoming effective, each Company DSU outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent cancelled in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with for a cash payment by the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock DSU equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.Shar
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall steps or transactions shall, unless specifically provided otherwise in this Section 2.3, occur and shall be deemed to occur in the following order as set out below without any further authorization, act or formality of or by formality, in each case at one-minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach Argonaut Share held by a Dissenting Shareholder shall be, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time shall be and be deemed to be, transferred (free and clear of all Liens) by the holder thereof, without any further act or formality on its part, to Argonaut for cancellation, and in consideration therefor such Dissenting Shareholder shall have a debt-claim to be irrevocably transferred paid the aggregate fair value of such Argonaut Shares as determined pursuant to Parent in exchange forSection 3.1, and, in each case, that number respect of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Argonaut Shares to Parentso transferred:
(i) each holder of such Company Shares Dissenting Shareholder shall cease to be the holder of such Company Argonaut Shares and to have any rights as Argonaut Shareholders other than the right to be paid the fair value for such holder’s name shall be removed from the applicable securities register of Company SharesArgonaut Shares as set out in Section 3.1;
(ii) legal and beneficial title to the name of each such Company Shares will vest in Parent and Parent will Dissenting Shareholder shall be and be deemed to be removed as an Argonaut Shareholder from the transferee and legal and beneficial owner registers of such Company Shares and will be entered in the applicable securities register Argonaut Shareholders maintained by or on behalf of the Company as the sole shareholder thereofArgonaut;
(iii) no fractional shares of Parent Common Stock each such Dissenting Shareholder shall be issued in connection with the Arrangementhave been deemed to have executed and delivered all consents, releases, assignments and no certificates waivers, statutory or scrip for any otherwise, required to transfer and assign such fractional shares shall be issued. Any holder of Company Argonaut Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing DateArgonaut;
(iv) with respect such Argonaut Shares so transferred to each share Argonaut shall thereupon be cancelled by Argonaut and the registers of Parent Common Stock issued to a former holder Argonaut Shareholders maintained by or on behalf of Company Shares, the name of such holder Argonaut shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;revised accordingly; and
(v) without any action on the part stated capital account maintained by Argonaut in respect of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) Argonaut Shares shall be cancelled in accordance with reduced by an amount equal to the terms product obtained when (i) the amount of the Company Option Plan and, stated capital account in exchange for such cancellation, such holder shall receive an option to purchase shares respect of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately Argonaut Shares immediate prior to the Effective Time Time, is multiplied by (including any repurchase rights or vesting provisionsii) a fraction, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number the numerator of whole shares of Parent Common Stock equal to the product of (x) which is the number of Company Common Argonaut Shares that would be issuable upon exercise transferred and cancelled pursuant to this Section 2.3(a) and the denominator of which is the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Argonaut Shares outstanding immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vib) The Company Option Plan the transactions contemplated by the New Argonaut Contribution Agreement shall become effective, and pursuant thereto Argonaut shall transfer, assign and convey to New Argonaut the Argonaut Contributed Assets and New Argonaut shall accept and assume the New Argonaut Liabilities and issue to Argonaut the New Argonaut Consideration Shares, and Argonaut shall be cancelled; and
(vii) without any action entered into the register of New Argonaut Shares maintained by or on behalf of New Argonaut as the part registered owner of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.such New Argonaut Consideration Shares;
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, each of the following events shall occur and shall be deemed to occur consecutively in the following order order, effective as at five minute intervals starting at the Effective Time, except where noted, without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Shareeach Dissent Share shall be deemed to be transferred and assigned by such Dissenting Holder, Class B Convertible Preferred Sharewithout any further act of formality on its part, Class C Convertible Preferred to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Article 3 and:
(i) each such Dissenting Holder shall cease to be a holder of each such Dissent Share and to have any rights as a holder of such Dissent Share other than the right to be paid fair value for such Dissent Share as set out in Section 3.1;
(ii) each such Dissenting Shareholder’s name shall be removed as a holder of such Dissent Shares from the register of Shareholders maintained by or on behalf of the Company; and
(iii) the Purchaser shall be and shall be deemed to be the holder of all of the outstanding Dissent Shares free and clear of all Liens, and the Purchaser shall be entered in the central securities register of Common Shares maintained by or on behalf of the Company as the holder of such Dissent Shares;
(b) the Purchaser shall make the Funding Loan to the Company to the extent required by the Company to make the payments in Section 2.3(c) (including any applicable withholdings);
(c) each Option outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Stock Option Plan, shall be deemed to be unconditionally vested and exercisable, and such Option shall, without any further action by or on behalf of any holder of Options, be deemed to be surrendered and transferred by such holder to the Company (free and clear of all Liens) in exchange for a cash payment from the Company or any successor thereto equal to the amount by which the Consideration exceeds the exercise price of each such Option, less applicable withholdings, and each such Option shall immediately be cancelled and, for greater certainty, where such amount is a negative, none of the Guarantor, the Purchaser or the Company shall be obligated to pay the holder of such Option any amount in respect of such Option and (i) each holder of Options shall cease to be a holder of such Options; (ii) such holder’s name shall be removed from each applicable register; (iii) the Stock Option Plan and all agreements relating to the Options shall be terminated and shall be of no further force and effect; and (iv) such holder shall thereafter have only the right to receive the consideration to which they are entitled under this Section 2.3(c) at the time and in the manner specified in this Section 2.3(c);
(d) each Common Share outstanding immediately prior to the Effective Time (other than any Common Share held by the Purchaser, the Guarantor or any of their respective affiliates, and any Dissent Shares transferred to the Purchaser pursuant to Section 2.3(a)) shall be transferred and be deemed assigned, without any further act or formality by or on behalf of a holder of Common Shares, to be irrevocably transferred to Parent the Purchaser in exchange forfor the Consideration, in each casesubject to Section 4.3, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:and
(i) each holder of such Company Shares thereof shall cease to be the holder of each such Company Common Share and to have any rights as a holder of such Common Shares and other than the right to be paid the Consideration by the Depositary in accordance with this Plan of Arrangement;
(ii) each such holder’s name shall be removed from the applicable securities register of Company Shares;Common Shares maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will the Purchaser shall be and shall be deemed to be the transferee holder of all of the outstanding Common Shares free and legal clear of all Liens, and beneficial owner of such Company Shares and will the Purchaser shall be entered in the applicable central securities register of Common Shares maintained by or on behalf of the Company as the sole shareholder thereofholder of such Common Shares;
(iiie) no fractional shares of Parent Common Stock the Funding Loan shall be issued in connection with transferred by the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded Purchaser to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior issuing to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a Purchaser such number of whole shares of Parent Common Stock Shares equal to the product of (x) quotient obtained by dividing the number of Company Common Shares that would be issuable upon exercise principal amount of the Company Unexercised Option immediately prior to Funding Loan by the Effective Time multiplied by (y) the Option Exchange RatioConsideration, rounded down to the nearest whole number of shares of Parent Common StockShares, and the promissory note evidencing the Funding Loan shall be cancelled as a result;
(iif) the per share exercise price capital of the Common Shares shall be reduced to an aggregate of $1.00 without any repayment of such capital;
(g) the Purchaser and the Company shall amalgamate to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Division 3 of Part 9 of the BCBCA, except that the legal existence of the Purchaser shall not cease and the Purchaser shall survive the amalgamation as Amalco and, for the shares avoidance of Parent Common Stock issuable doubt, this transaction is intended to qualify as an amalgamation as defined in subsection 87(1) of the Tax Act;
(h) without limiting the generality of Section 2.3(g), upon exercise the amalgamation described in Section 2.3(g), the separate legal existence of such the Company Unexercised Option will be equal to shall cease without the quotient equal to Company being liquidated or wound up and the Company and Purchaser shall continue as one company;
(xi) at the time of and upon the amalgamation described in Section 2.3(g),
(i) the per share exercise price for such Company Unexercised Option property, rights and interests of the Purchaser (other than Common Shares held, immediately prior to the Effective Time divided amalgamation, by (y) the Option Exchange RatioPurchaser, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option which shall be vested immediately following cancelled upon the Effective Time amalgamation as contemplated by Section 2.3(i)(vi)) and the Company continue to be the same percentage property, rights and interests of Amalco; and, for greater certainty, the amalgamation will not constitute an assignment by operation of law, a transfer or any other disposition of the total number property, rights and interests of shares subject thereto as it was vested immediately prior either the Purchaser or the Company to Amalco;
(ii) Amalco will continue to be liable for all of the Effective Time, except to liabilities and obligations of the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable Purchaser and the terms and conditions Company;
(iii) any existing cause of exercise action, claim or liability to prosecution will be unaffected;
(iv) a civil, criminal, quasi-criminal, or administrative or regulatory action or proceeding being prosecuted or pending by or against either the Purchaser or the Company may be continued, as the case may be, by or against Amalco;
(v) a conviction against, or ruling, order or judgment in favour of such or against either the Purchaser or the Company Unexercised Option shall may be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawenforced by or against Amalco;
(vi) The Company Option Plan each holder of the issued and outstanding common shares of the Purchaser (“Purchaser Shares”) shall receive on the amalgamation one common share in the authorized share structure of Amalco for each Purchaser Share previously held by such holder, and all of the issued and outstanding Common Shares of the Company, all of which will then be held by the Purchaser, will be cancelled without repayment of capital in respect thereof;
(vii) the name of Amalco shall be cancelled“Corvus Gold ULC”;
(viii) Amalco shall be authorized to issue an unlimited number of common shares without par value;
(ix) the articles and notice of articles of Amalco shall be substantially in the form of the articles and notice of articles of the Purchaser;
(x) the registered and records offices of Amalco shall initially be located at Suite 1700, 6▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇;
(xi) the first directors of Amalco following such amalgamation shall be [l]; and
(viixii) without any action the aggregate capital of the common shares of Amalco will be an amount equal to the aggregate capital attributable to the Purchaser Shares immediately prior to such amalgamation, it being expressly provided that the events provided for in this Section 2.3 will be deemed to occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by procedures related thereto may not be completed until after the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share each Tahoe PSA outstanding immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (held by a “Company Unexercised Option”) Tahoe PSA Holder shall be cancelled immediately vest in accordance with the terms of the Company Option Tahoe PSA Plan and will be settled by Tahoe issuing to the Tahoe PSA Holder one Tahoe Share less any amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe PSA Holder as fully paid and non-assessable shares in the capital of Tahoe: provided that no share certificates shall be issued with respect to such shares;
(b) each Tahoe RSA outstanding immediately prior to the Effective Time that is held by a Tahoe RSA Holder shall immediately vest in accordance with the terms of the Tahoe Long Term Incentive Plan;
(c) each Tahoe DSA outstanding immediately prior to the Effective Time that is held by a Tahoe DSA Holder shall immediately vest in accordance with the terms of the Tahoe Long Term Incentive Plan and will be settled by Tahoe issuing to the Tahoe DSA Holder one Tahoe Share less any amounts withheld pursuant to Section 4.4 and the Tahoe Shares issuable in connection therewith will be issued to such Tahoe DSA Holder as fully paid and non-assessable shares in the capital of Tahoe: provided that no share certificates shall be issued with respect to such shares;
(d) each Tahoe SAR outstanding immediately prior to the Effective Time that is held by a Tahoe SAR Holder and all rights in respect thereof shall be cancelled and terminated without any payment in respect thereof;
(e) each Dissenting Shareholder shall transfer to Pan American all of the Dissent Shares held, without any further act or formality on its part, and in consideration therefor, Pan American shall issue to the Dissenting Shareholder a debt-claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so transferred
(i) the Dissenting Shareholder shall cease to be the holder thereof,
(ii) the name of the Dissenting Shareholder shall be removed from the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares,
(iii) the Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(iv) the name of Pan American shall be added to the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof; and
(f) each Tahoe Shareholder shall transfer to Pan American each whole Tahoe Share held (other than any Tahoe Shares held by Pan American immediately before the Effective Time or acquired by Pan American from a Dissenting Shareholder under Section 3.1(e), but including, for greater certainty, any Tahoe Shares held or issued pursuant to Section 3.1(a), 3.1(b) or 3.1(c)) in exchange for such cancellation(A) one CVR and (B),
(i) in the case of a Tahoe Share for which the Cash Election was made under Section 3.2(a)(i), such the Cash Consideration, or
(ii) in the case of a Tahoe Share for which the Share Election was made under Section 3.2(a)(ii) or deemed to have been made under Section 3.2(b) or 5.1(b), the Share Consideration, in each case subject to proration in accordance with Section 3.3, and in respect of the Tahoe Shares so transferred
(iii) the Tahoe Shareholder shall cease to be the holder thereof,
(iv) the name of the Tahoe Shareholder shall receive an option be removed from the register maintained by or on behalf of Tahoe in respect of the Tahoe Shares,
(v) the Tahoe Shareholder shall be deemed to purchase shares have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(vi) the name of Parent Common Stock with substantially Pan American shall be added to the same terms and conditions register maintained by or on behalf of Tahoe in respect of the Tahoe Shares as the holder thereof;
(including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if anyg) as were in effect each Tahoe Option outstanding immediately prior to the Effective Time (including any repurchase rights whether vested or vesting provisions, if applicable), except that (iunvested) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely exchanged for a Replacement Option to acquire from Pan American such number of whole shares of Parent Common Stock Pan American Shares as is equal to the product of to: (xA) the number of Company Common Tahoe Shares that would be were issuable upon exercise of the Company Unexercised such Tahoe Option immediately prior to the Effective Time Time, multiplied by (yB) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common StockPan American Shares, and (ii) the per share at an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Pan American Share equal to the quotient equal to determined by dividing: (xX) the per share exercise price for per Tahoe Share at which such Company Unexercised Tahoe Option was exercisable immediately prior to the Effective Time divided Time, by (yY) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent cent. Except as set out above, the terms of each Replacement Option”). Each Company Unexercised Option shall be vested immediately following the same as the terms of the Tahoe Option exchanged therefor pursuant to any agreement evidencing the grant thereof prior to the Effective Time. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange. Therefore, in the event that the Replacement Option In-The-Money Amount in respect of a Tahoe Option would otherwise exceed the Tahoe Option In-The-Money Amount in respect of the Replacement Option, the number of Pan American Shares which may be acquired on exercise of the Replacement Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Replacement Option In-The-Money Amount in respect of the Replacement Option does not exceed the Tahoe Option In-The- Money Amount in respect of the Tahoe Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged;
(h) each Tahoe Share held by Pan American, including the Tahoe Shares acquired pursuant to Section 3.1(f) hereof, shall be transferred to Subco and in consideration therefor Subco shall issue to Pan American one fully paid and non-assessable common share of Subco for each Tahoe Share so transferred, and
(i) the name of Pan American shall be removed from the central securities register as a holder of Tahoe Shares;
(ii) Subco shall be recorded as the registered holder of the Tahoe Shares so transferred and shall be deemed to be the legal and beneficial owner of such Tahoe Shares; and
(iii) the amount added to the capital of the Subco common shares will be equal to the lesser of (A) the paid up capital (as such term is defined in the Tax Act) of the Tahoe Shares so transferred and (B) the fair market value of the Tahoe Shares so transferred;
(i) the capital of the Tahoe Shares shall be reduced to US$1.00 without any repayment of capital in respect thereof;
(j) Tahoe and Subco shall merge (the “Merger”) to form one corporate entity (the “Merged Company”) with the same effect as if they had amalgamated under Section 269 of the BCBCA except that the separate legal existence of Subco shall not cease and Subco shall survive the merger, and Pan American shall receive on the Merger one common share of the Merged Company in exchange for each Subco common share previously held and all of the issued and outstanding Tahoe Shares will be cancelled without any repayment of capital in respect thereof;
(k) without limiting the generality of Section 3.1(j), the separate legal existence of Tahoe shall cease without Tahoe being liquidated or wound up; Tahoe and Subco will continue as one company; and the properties and liabilities of Tahoe will become the properties and liabilities of Subco; and
(l) from and after the Effective Date, at the time of the step contemplated in Section 3.1(j):
(i) Subco as the Merged Company will own and hold all property of Subco and will own and hold all property of Tahoe and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such merger, and all liabilities and obligations of Tahoe and Subco, whether arising by contract or otherwise, may be enforced against Subco to the same percentage extent as if such obligations had been incurred or contracted by it;
(ii) Subco as the Merged Company will continue to be liable for all of the total liabilities and obligations of Tahoe and Subco;
(iii) all rights, contracts, permits and interests of Tahoe and Subco will continue as rights, contracts, permits and interests of Subco as the Merged Company as if Tahoe and Subco continued and, for greater certainty, the merger will not constitute a transfer or assignment of the rights or obligations of either of Tahoe or Subco under any such rights, contracts, permits and interests;
(iv) any existing cause of action, claim or liability to prosecution will be unaffected;
(v) a civil, criminal or administrative action or proceeding pending by or against either Subco or Tahoe may be continued by or against the Merged Company;
(vi) a conviction against, or ruling, order or judgment in favour of or against either Subco or Tahoe may be enforced by or against the Merged Company;
(vii) the name of the Merged Company shall be in the name of Subco;
(viii) the Merged Company shall be authorized to issue an unlimited number of common shares subject thereto as it was vested without par value;
(ix) the Notice of Articles and Articles of the Merged Company shall be substantially in the form of the Subco Notice of Articles and Articles;
(x) the first annual general meeting of the Merged Company will be held within 18 months from the Effective Date;
(xi) the registered office of the Merged Company shall be the registered office of Subco;
(xii) the first directors of the Merged Company following the Merger shall be the individuals who were directors of Subco immediately prior to the Effective Time;
(xiii) the first officers of the Merged Company following the Merger shall be the individuals, except to the extent such Company Unexercised Option (either by its terms or by the terms if any, who were officers of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent Subco immediately prior to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vixiv) The the aggregate capital of the common shares of the Merged Company Option Plan shall will be cancelledan amount equal to the paid up capital, as that term is defined in the Tax Act, attributable to the shares of Subco immediately prior to the Merger; and
(viixv) without any action the Merger shall not constitute an acquisition of property of Tahoe or Subco by the other pursuant to the purchase of property or as a result of the distribution or winding-up of Tahoe or Subco, it being expressly provided that the events provided for in this Section 3.1 will be deemed to occur on the part of ParentEffective Date, the Company or the holder of notwithstanding that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by procedures related thereto may not be completed until after the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectEffective Date.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to the Effective Time Shareholder Rights Plan shall be cancelled and shall have no further force or effect and each of the rights thereunder shall be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.cancelled for no consideration;
(b) Upon five minutes after the transfer steps contemplated in Section 2.3(a), notwithstanding any vesting or exercise provisions to which an Orko Option might otherwise be subject (whether by contract, the conditions of all Company Shares to Parent:grant, applicable law or the terms of the Orko Stock Option Plan):
(ic) each the outstanding Orko Options will, without any further action by or on behalf of any holder of such Company Shares shall Orko Options, be deemed to be cancelled without any compensation therefor;
(d) with respect to each Orko Option, the holder thereof will cease to be the holder of such Company Shares and Orko Option, will cease to have any rights as a holder in respect of such holder’s name shall Orko Option, such holder will be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the ArrangementOrko Options, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shalloption agreements, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding grants and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option similar instruments relating thereto will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(viie) without the Orko Stock Option Plan shall be terminated;
(f) five minutes after the steps contemplated in Section 2.3(b), each Orko Share held by a Dissenting Shareholder in respect of which the Orko Shareholder has validly exercised his, her or its Dissent Rights shall be directly transferred and assigned by such Dissenting Shareholder to First Majestic (free and clear of any action on liens, charges and encumbrances of any nature whatsoever) in accordance with, and for the part consideration set forth in, Section 3.1;
(g) five minutes after the steps contemplated in Section 2.3(c), each Orko Share (other than any Orko Share held by any Dissenting Shareholder) shall be deemed to be transferred to First Majestic (free and clear of Parentany liens, charges and encumbrances of any nature whatsoever) in exchange for the Company Share Consideration;
(h) with respect to each Orko Share transferred and assigned in accordance with Section 2.3(c) or Section 2.3(d):
(i) the registered holder thereof shall cease to be the registered holder of such Orko Share and the name of such registered holder shall be removed from the register of Orko Shareholders as of the Effective Time;
(j) the registered holder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Orko Share; and
(k) First Majestic will be the holder of that certain warrant all of the outstanding Orko Shares and the register of Orko Shareholders shall be revised accordingly;
(l) five minutes after the steps contemplated in Section 2.3(d) and (e), each outstanding Orko Share will be transferred to purchase Company Common Subco in consideration of the issue by Subco to First Majestic of one Subco Share for each Orko Share so transferred, and the amount added to the stated capital of the Subco Shares dated as will be equal to the value of October 5, 2007 issued by the Company Orko Shares so transferred;
(m) concurrent with the “Warrant”step in Section 2.3(f), the Warrant stated capital in respect of the Orko Shares shall be terminated reduced to an aggregate of $1.00 without any repayment of capital in respect thereof;
(n) five minutes after the steps contemplated in Section 2.3(f) and (g), Orko and Subco shall merge to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 269 of the Closing Business Corporations Act, except that the legal existence of Orko shall not cease and Orko shall survive the merger as Amalco;
(o) without limiting the generality of Section 2.3(h), the separate legal existence of Subco shall cease without Subco being liquidated or wound up and Orko and Subco shall continue as one company and the property of Subco shall become the property of Amalco;
(p) from and after the Effective Date, at the time of the step contemplated in Section 2.3(h):
(q) Amalco will own and hold the property of Orko and Subco and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, and all liabilities and obligations of Orko and Subco, whether arising by contract or otherwise, may be enforced against Amalco to the same extent as if such obligations had been incurred or contracted by it;
(r) Amalco will continue to be liable for all of the liabilities and obligations of Orko and Subco;
(s) all rights, contracts, permits and interests of Orko and Subco will continue as rights, contracts, permits and interests of Amalco as if Orko and Subco continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Orko or Subco under any such rights, contracts, permits and interests;
(t) any existing cause of action, claim or liability to prosecution will be unaffected;
(u) a civil, criminal or administrative action or proceeding pending by or against either Orko or Subco may be continued by or against Amalco;
(v) a conviction against, or ruling, order or judgment in favour of or against either Orko or Subco may be enforced by or against Amalco;
(w) First Majestic as the holder of the Subco Shares shall receive on the amalgamation one common share in the authorised share structure of Amalco in exchange for each Subco Share previously held and all of the issued and outstanding Orko Shares will be cancelled without repayment of capital in respect thereof;
(x) the name of Amalco shall be “Orko Silver Corp.”;
(y) Amalco shall be authorised to issue an unlimited number of no further force common shares without par value;
(z) the articles and notice of articles of Amalco shall be substantially in the form of the articles and notice of articles of Orko;
(aa) the first annual general meeting of Amalco or effectresolutions in lieu thereof shall be held within 18 months from the Effective Date;
(bb) the first directors of Amalco following the amalgamation shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and
(cc) the stated capital of the common shares of Amalco will be an amount equal to the paid-up capital, as that term is defined in the ITA, attributable to the Subco Shares immediately prior to the amalgamation; and
(dd) the exchanges and cancellations provided for in this Section 2.3 will be deemed to occur on the Effective Date, notwithstanding certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing on At the Effective Time, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of or by formality, in each case, unless stated otherwise, effective as at five minute intervals starting immediately following the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach Company Share Option outstanding immediately prior to the Effective Time (whether vested or unvested), Class B Convertible Preferred Sharenotwithstanding the terms of the Company Share Option Plan, Class C Convertible Preferred shall be deemed to be unconditionally vested and exercisable, and such Company Share Option shall, without any further action by or on behalf of the holder of the Company Share Option, be deemed to be assigned and transferred by such holder to the Company (free and clear of all Encumbrances) in exchange for a cash payment from the Company equal to the amount equal to the product of: (i) the amount by which the Company Common Share Consideration exceeds the exercise price per Company Common Share of such Company Share Option; and (ii) the number of Company Common Shares into which such Company Share Option is exercisable; provided that in the event the foregoing calculation would result in a product less than $0.01, the consideration to be received in respect of such Company Share Option shall be $0.01, and:
(i) each holder of Company Share Options shall cease to be a holder of such Company Share Options;
(ii) such holder’s name shall be removed from the register of the Company Share Options;
(iii) the Company Share Option Plan and all agreements relating to the Company Share Options shall be terminated and shall be of no further force and effect; and
(iv) such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.3(a);
(b) each Company Award outstanding immediately prior to the Effective Time (whether vested or unvested) shall be deemed to be unconditionally vested, and such Company Award shall, without any further action by or on behalf of the holder of the Company Award, be deemed to be assigned and transferred by such holder to the Company (free and clear of all Encumbrances) in exchange for a cash payment from the Company equal to the Company Common Share Consideration, and:
(i) each holder of Company Awards shall cease to be a holder of such Company Awards;
(ii) such holder’s name shall be removed from the register of the Company Awards;
(iii) the Company MTIP and all agreements relating to the Company Awards shall be terminated and shall be of no further force and effect; and
(iv) such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.3(b);
(c) each Company DSU outstanding immediately prior to the Effective Time shall, without any further action by or on behalf of the holder of the Company DSU, be deemed to be assigned and transferred by such holder to the Company (free and clear of all Encumbrances) in exchange for a cash payment from the Company equal to the Company Common Share Consideration, and:
(i) each holder of Company DSUs shall cease to be a holder of such Company DSUs;
(ii) such holder’s name shall be removed from the register of the Company DSUs;
(iii) the Company DSUP and all agreements relating to the Company DSUs shall be terminated and shall be of no further force and effect; and
(iv) such holder shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Section 2.3(c);
(d) each Company Common Share held by Dissenting Holders in respect of which Dissent Rights have been validly exercised and not withdrawn or deemed to have been withdrawn shall, without any further action by or on behalf of the Dissenting Holder, be deemed to have been assigned and transferred by such Dissenting Holder to the Purchaser (free and clear of all Encumbrances) in consideration for a debt claim against the Purchaser for the amount determined under Article 3, and:
(i) such Dissenting Holders shall cease to be the holders of such Company Common Shares and to have any rights as holders of such Company Common Shares other than the right to be paid fair value for such Company Common Shares as set out in Section 3.1;
(ii) such Dissenting Holders’ names shall be removed as the holders of such Company Common Shares from the register of Common Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be deemed to be the legal and beneficial owner of such Company Common Shares (free and clear of all Encumbrances) and shall be entered in the register of Company Common Shares maintained by or on behalf of the Company; and
(e) each Company Common Share outstanding immediately prior to the Effective Time shall be Time, other than Company Common Shares held by a Dissenting Holder in respect of which Dissent Rights have been validly exercised and not withdrawn or deemed to have been withdrawn, shall, without any further action by or on behalf of the holder of the Company Common Share, be deemed to be irrevocably assigned and transferred by the holder thereof to Parent the Purchaser (free and clear of all Encumbrances) in exchange forfor the Company Common Share Consideration for each Company Common Share held, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentand:
(i) each holder the holders of such Company Common Shares shall cease to be the holder holders thereof and to have any rights as holders of such Company Common Shares and other than the right to be paid the Company Common Share Consideration for each Company Common Share formerly held in accordance with this Plan of Arrangement;
(ii) such holder’s name holders’ names shall be removed from the applicable securities register of the Company Shares;Common Shares maintained by or on behalf of the Company; and
(iiiii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and the Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Common Shares (free and will be entered in the applicable securities register clear of the Company as the sole shareholder thereof;
(iiiall Encumbrances) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise maintained by or on behalf of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectCompany.
Appears in 1 contract
Sources: Arrangement Agreement
Arrangement. 3.1 Commencing on at the Effective Time, the following events set out below shall occur and shall be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Personexcept as otherwise provided herein:
(a) Each Class A Convertible Preferred Sharethe QAT Shares held by Dissenting Shareholders shall, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share outstanding immediately prior to as of the Effective Time Time, be transferred to, and acquired by, QAT, and shall be cancelled and be deemed shall cease to be irrevocably transferred outstanding and each Dissenting Shareholder shall cease to Parent in exchange for, in each case, that number have any rights as a QAT Shareholder other than the right to be paid the fair value of shares of Parent Common Stock as determined their QAT Shares in accordance with the formula set out on Exhibit A attached hereto.Article 5;
(b) Upon all of the transfer issued and outstanding QAT Shares will be exchanged with Newco for Purchaser Shares on the basis that each QAT Shareholder (other than Dissenting Shareholders at the Effective Time) shall receive for each QAT Share registered in the QAT Shareholder’s name immediately prior the Effective Time, 0.2222 of all Company a Purchaser Share, provided that the Purchaser Shares received by each QAT Shareholder shall be Restricted Shares as set out in Article 4;
(c) the Amalgamating Corporations shall amalgamate pursuant to Parentthe provisions of the OBCA to form Amalco and shall continue as one corporation on the terms prescribed in this Plan of Arrangement, and:
(i) the property of each holder Amalgamating Corporation shall continue to be the property of such Company Amalco;
(ii) Amalco shall continue to be liable for the obligations of each Amalgamating Corporation;
(iii) any existing cause of action, claim or liability to prosecution shall be unaffected;
(iv) any civil, criminal or administrative action or proceeding pending by or against an Amalgamating Corporation may be continued to be prosecuted by or against Amalco;
(v) any conviction against, or ruling, order or judgment in favour of or against, an Amalgamating Corporation may be enforced by or against Amalco;
(vi) except as may be prescribed, the articles of amalgamation shall be the same as the articles of Newco and the articles of amalgamation are deemed to be the articles of incorporation of Amalco and the certificate of amalgamation is deemed to be the certificate of incorporation of Amalco; and
(vii) the by-laws of Amalco shall be the same as the by-laws of Newco;
(d) on the Amalgamation:
(i) all Newco Shares shall be converted on a share for share basis into fully paid and non-assessable Amalco Shares on the basis of one fully paid and non-assessable Amalco Share for each one Newco Share;
(ii) all QAT Shares shall be cancelled without any repayment of capital in respect thereof;
(iii) the paid-up capital of the Amalco Shares shall, for the purposes of the Income Tax Act (Canada), be the paid-up capital of the Newco Shares immediately before the Amalgamation; and
(iv) the stated capital of the Amalco Shares shall, for the purposes of the Income Tax Act (Canada), be equal to the paid-up capital of the Newco Shares immediately before the Amalgamation.
3.2 In connection with the exchanges described in subsection 3.1(b), each QAT Shareholder shall cease to be the a holder of such Company QAT Shares and shall be a holder of the number of Purchaser Shares to which such holder is entitled and, if a registered holder, such holder’s 's name shall be removed from the applicable securities register of Company Shares;
(ii) legal QAT Shareholders and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled added to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effectPurchaser Shares.
Appears in 1 contract
Sources: Arrangement Agreement (Mobile Integrated Systems, Inc.)
Arrangement. Commencing on at the Effective Time, the following events or transactions shall occur sequentially in the order set out below and will be deemed to occur without any further act or formality required on the part of any Person, except as otherwise provided herein:
(a) the Company shall pay all accrued and unpaid interest under the Brookfield Existing Loan in cash to Brookfield;
(b) all amounts owing to Brookfield under the Brookfield Existing Loan shall be, and shall be deemed to occur be, irrevocably, finally and fully settled and extinguished by the issuance by the Company to Brookfield of 18,214,401,868 Common Shares. The Common Shares issued pursuant to this Section 2.2(b) shall be, and shall be deemed to be, received in full and final settlement, extinguishment, discharge and release of the following order Brookfield Existing Loan and all Claims relating thereto;
(c) the Company shall pay the Debentures Interest in cash to the applicable Indenture Trustee or its nominee, as registered holder of the global notes and on behalf of all Debentureholders, and such Indenture Trustee shall pay (or cause to be paid) the Debentures Interest to the Debentureholders pursuant to standing instructions and customary practices, without abatement or rights of setoff or counterclaim of any nature;
(d) the Debentures shall be, and shall be deemed to be, irrevocably, finally and fully settled and extinguished by the issuance by the Company to the Debentureholders of 1,187,895,774 Common Shares, with each Debentureholder being entitled to receive its Debentureholder’s Pro Rata Share of such Common Shares in full and final settlement of and in exchange for the Debentures. The Common Shares issued pursuant to this Section 2.2(d) shall be, and shall be deemed to be, received in full and final settlement, extinguishment, discharge and release of the Debentures, the Indentures, all Entitlements relating to the Debentures and the Indentures and all other Debentureholders’ Claims;
(e) notwithstanding any vesting provisions to which an RSU might otherwise be subject,
(i) each RSU issued and outstanding at the Effective Time, whether or not vested, will be transferred to the Company without any further authorizationaction on behalf of the respective holders thereof, act or formality free and clear of or by the Companyall liens, Parent or charges, encumbrances and any other Person:
(a) Each Class A Convertible Preferred Sharerights of others, Class B Convertible Preferred Shareand in exchange therefor, Class C Convertible Preferred Share and the Company shall issue to the holder such number of Common Share outstanding Shares as were subject to the RSU immediately prior to the Effective Time shall be and be deemed to be irrevocably transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;Time; and
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent the RSU Plan will be terminated and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as will have no liabilities or obligations with respect to the sole shareholder thereofRSU Plan;
(iiif) no fractional shares of Parent the Common Stock shall Shares then issued and outstanding will be issued in connection with the Arrangementconsolidated, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company that every 400 Common Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) automatically and without any action on the part of Parent, the Company or the respective holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable combined and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawconverted into one new Common Share;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Recapitalization Agreement (North American Palladium LTD)
Arrangement. Commencing on at the Effective Time, Time the following shall transactions will occur and shall be deemed to occur in the following order sequence without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Sharethe BMG Shareholder Rights Plan shall be terminated and all rights issued thereunder shall be extinguished;
(b) each Dissenter shall dispose of all of the Dissent Shares held by the Dissenter to GSV and in consideration therefor, Class B Convertible Preferred ShareGSV shall issue to the Dissenter a debt-claim to be paid by GSV the aggregate fair market value of those Dissent Shares, Class C Convertible Preferred Share and Company Common Share outstanding immediately in respect thereof:
(i) the Dissenter shall cease to hold the Dissent Shares and the name of the Dissenter shall be removed from the central securities register of BMG; and
(ii) GSV shall become the registered holder of the Dissent Shares and the name of GSV shall be entered in the central securities register of BMG;
(c) all June Options which have not been cancelled, exercised or otherwise terminated prior to the Effective Time shall be terminated and be deemed cancelled without any payment or consideration in respect thereof;
(d) each BMG Employee Optionholder shall dispose of each outstanding BMG Employee Option (other than a June Option) held by the BMG Employee Optionholder to be irrevocably transferred GSV, and in sole consideration therefor, GSV shall issue to Parent in exchange for, in each case, that the BMG Employee Optionholder a number of shares Replacement Options having the same terms as the BMG Employee Option disposed of Parent Common Stock as determined in accordance with equal to the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parentproduct obtained by multiplying:
(i) each holder of such Company Shares shall cease to be the holder of such Company Shares and such holder’s name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common BMG Shares that would be issuable upon on the exercise of the Company Unexercised BMG Employee Option immediately prior to the Effective Time multiplied by by
(yii) the Option Exchange Ratio, and having an exercise price, rounded down up to the nearest whole number of shares of Parent Common Stockcent, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to obtained by dividing:
(xiii) the per share exercise price for such Company Unexercised per BMG Share issuable on the exercise of the BMG Employee Option immediately prior to the Effective Time divided by by
(yiv) the Option Exchange Ratio, except that the aggregate number of Replacement Options having a common exercise date and price which are issuable hereunder to a BMG Employee Optionholder shall be rounded down to the nearest whole number;
(e) each outstanding BMG Option, other than a BMG Employee Option and a June Option, held by a BMG Optionholder shall remain outstanding in accordance with its terms and shall, in lieu of being exercisable for BMG Shares, be exercisable for the number of GSV Shares equal to the product obtained by multiplying:
(i) the number of BMG Shares issuable on the exercise of the BMG Option immediately prior to the Effective Time by
(ii) the Exchange Ratio, and shall have an exercise price per GSV Share, rounded up to the nearest whole cent cent, equal to the quotient obtained by dividing:
(iii) the exercise price per BMG Share issuable on the exercise of the BMG Option immediately prior to the Effective Time by
(iv) the Exchange Ratio, except that the aggregate number of GSV Shares issuable to a “Parent Replacement Option”). Each Company Unexercised BMG Optionholder on the exercise of a BMG Option shall be vested immediately following the Effective Time as rounded down to the same percentage nearest whole number;
(f) each outstanding BMG Warrant held by a BMG Warrantholder shall remain outstanding in accordance with its terms and shall, in lieu of being exercisable for one (1) BMG Share, be exercisable for the number of GSV Shares equal to the Exchange Ratio and shall have an exercise price equal to the exercise price of the total number of shares subject thereto as it was vested BMG Warrant immediately prior to the Effective Time, except that the aggregate number of GSV Shares issuable to a BMG Warrantholder on the exercise of BMG Warrants having a common exercise date and price shall be rounded down to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancellednearest whole number; and
(viig) without any action each BMG Shareholder, other than GSV (and other than a Dissenter), shall
(i) dispose of 8/59 of each BMG Share held by the BMG Shareholder to GSV, and in sole consideration for such fraction of each BMG Share, GSV shall pay to the BMG Shareholder $0.08, and
(ii) dispose of 51/59 of each BMG Share held by the BMG Shareholder to GSV, and in sole consideration for such fraction of each BMG Share, GSV shall issue to the BMG Shareholder, for an aggregate issue price equal to the fair market value thereof, that number of fully-paid GSV Shares equal to the Share Exchange Ratio, except that the aggregate number of GSV Shares issuable to a BMG Shareholder on the part exchange of Parent, the Company or the holder of that certain warrant to purchase Company Common BMG Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as rounded down to the nearest whole number, and in respect thereof:
(iii) the BMG Shareholder shall cease to hold the BMG Shares and the name of the Closing and BMG Shareholder shall be removed from the securities register of no further force or effectBMG;
(iv) the BMG Shareholder shall become the legal and beneficial owner of the GSV Shares and the name of the BMG Shareholder shall be entered in the securities register of GSV; and
(v) an amount equal to the issue price of the GSV Shares so issued shall be added to the capital of the GSV Shares.
Appears in 1 contract
Arrangement. 3.1.1 The Pre-Arrangement Transactions shall occur prior to, and the completion of the Pre-Arrangement Transactions shall be conditions precedent to, the implementation of the Arrangement.
3.1.2 Commencing on at the Arrangement Effective Time, unless otherwise specifically provided in this Section 3.1.2, each of the following transactions and events in subsections (a) through (f) of this Section 3.1.2 shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of formality, in each case effective as at one minute intervals following the immediately preceding transaction or by the Company, Parent or any other Personevent:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common each TPCO Share outstanding immediately prior to the Arrangement Effective Time held by a TPCO Shareholder in respect of which TPCO Dissent Rights have been validly exercised shall be be, and shall be deemed to be irrevocably be, transferred without any further act or formality to Parent in exchange forTPCO by the holder thereof for cancellation, in each case, that number of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.
(b) Upon the transfer free and clear of all Company Shares to ParentLiens, and:
(i) each holder of such Company Shares shall TPCO Shareholder will cease to be the holder of such Company TPCO Dissenting Shares and will cease to have any rights as a holder of such holder’s TPCO Dissenting Shares other than the right to be paid fair value for such TPCO Dissenting Shares as set out in Section 4.1.2, and
(ii) such TPCO Shareholder's name shall will be removed as the registered holder of such TPCO Dissenting Shares from the applicable central securities register of Company SharesTPCO Shares maintained by or on behalf of TPCO, and the TPCO Dissenting Shares shall be cancelled;
(b) each Stately Share outstanding immediately prior to the Arrangement Effective Time held by a Stately Shareholder in respect of which Stately Dissent Rights have been validly exercised shall be, and shall be deemed to be, transferred without any further act or formality to Stately by the holder thereof for cancellation, free and clear of all Liens, and:
(i) such Stately Shareholder will cease to be the holder of such Stately Dissenting Shares and will cease to have any rights as a holder of such Stately Dissenting Shares other than the right to be paid fair value for such Stately Dissenting Shares as set out in Section 4.2.2, and
(ii) such Stately Shareholder's name will be removed as the registered holder of such Stately Dissenting Shares from the central securities register of Stately Shares maintained by or on behalf of Stately, and the Stately Dissenting Shares shall be cancelled;
(c) TPCO, Stately and Newco shall amalgamate (the "Amalgamation") to form one company ("Amalco") with the same effect as if they had amalgamated under Section 269 of the BCBCA and with the consequences set forth in Section 282(1) of the BCBCA (and for the avoidance of doubt, the Amalgamation is intended to qualify as an amalgamation as defined in subsection 87(1) of the Tax Act), including:
(i) all property, rights and interests of TPCO, Stately and Newco shall become the property, rights and interests of Amalco;
(ii) legal the articles and beneficial title to such Company Shares will vest in Parent and Parent will notice of articles of Amalco shall be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register form of the Company as the sole shareholder thereofarticles and notice of articles of Newco;
(iii) no fractional shares the Amalgamation shall not constitute an assignment by operation of Parent Common Stock law, a transfer or any other disposition of the property, rights and interests of any of Newco, Stately or TPCO to Amalco;
(iv) all rights of creditors of Newco, Stately and TPCO will be unimpaired by the Amalgamation, and all liabilities and obligations of Newco, Stately and TPCO, whether arising by contract or otherwise, may be enforced against Amalco to the same extent as if such obligations had been incurred or contracted by Amalco;
(v) Amalco will be liable for all of the liabilities and obligations of Newco, Stately and TPCO;
(vi) all rights, contracts, permits and interests of Newco, Stately and TPCO will continue as rights, contracts, permits and interests of Amalco and, for greater certainty, the Amalgamation will not constitute a transfer or assignment of the rights or obligations of any of Newco, Stately or TPCO under any such rights, contracts, permits and interests;
(vii) any existing cause of action, claim or liability to prosecution will be unaffected;
(viii) a legal proceeding being prosecuted or pending by or against any of Newco, Stately or TPCO may be prosecuted or its prosecution may be continued, as the case may be, by or against Amalco;
(ix) a conviction against, or ruling, order or judgment in favour of or against any of Newco, Stately or TPCO may be enforced by or against Amalco;
(x) the name of Amalco shall be issued "Gold Flora Corporation";
(xi) Amalco shall be authorized to issue an unlimited number of common shares without par value;
(xii) the first annual general meeting of Amalco or resolutions in connection with lieu thereof shall be held within 18 months from the ArrangementArrangement Effective Date;
(xiii) the first directors of Amalco following the Amalgamation shall be the then current Newco directors;
(xiv) each Newco Share outstanding immediately prior to the Amalgamation shall be, and no certificates or scrip for any such fractional shares shall be issued. Any deemed to be, cancelled and the name of the holder of Company such Newco Share shall be removed from Newco's central securities register in respect of such Newco Share, and in consideration therefor such holder will receive one fully paid and non-assessable Amalco Share, and upon such exchange each such former holder of such exchanged Newco Share shall be entered in Amalco's central securities register for the Amalco Shares who would otherwise be entitled as the owner of such Amalco Share;
(xv) each TPCO Share outstanding immediately prior to receive a fraction the Amalgamation (excluding, for the avoidance of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable doubt, any TPCO Dissenting Share which was previously transferred to such holderTPCO and cancelled under Section 3.1.2(a)) shall, without any further action by or on behalf of any TPCO Shareholder, be, and shall be deemed to be, cancelled in lieu exchange for the TPCO Consideration, and:
(A) the name of the holder of such fraction TPCO Share shall be removed from TPCO's central securities register in respect of such TPCO Share;
(B) each holder of such TPCO Share shall cease to be the holder thereof and to have any rights as a TPCO Shareholder other than the right to receive the TPCO Consideration; and
(C) each such former holder of such exchanged TPCO Share shall be entered in Amalco's central securities register for the Amalco Shares as the owner of the Amalco Shares constituting such TPCO Consideration;
(xvi) each Stately Share outstanding immediately prior to the Amalgamation (excluding, for the avoidance of doubt, any Stately Dissenting Share which was previously transferred to Stately and cancelled under Section 3.1.2(b)) shall, without any further action by or on behalf of any Stately Shareholder, be, and shall be deemed to be, cancelled in exchange for the Stately Consideration, and:
(A) the name of the holder of such Stately Share shall be removed from Stately's central securities register in respect of such Stately Share;
(B) each holder of such Stately Share shall cease to be the holder thereof and to have any rights as a Stately Shareholder other than the right to receive the Stately Consideration; and
(C) each such former holder of such exchanged Stately Share shall be entered in Amalco's central securities register for the Amalco Shares as the owner of the Amalco Shares constituting such Stately Consideration;
(xvii) concurrently with the exchange of the Newco Shares, the TPCO Shares and the Stately Shares under Section 3.1.2(c)(xiv), Section 3.1.2(c)(xv) and Section 3.1.2(c)(xvi), respectively:
(A) for greater certainty, the capital of the Newco Shares shall be reduced by an amount equal to the capital of such shares immediately prior to the Amalgamation;
(B) for greater certainty, the capital of the TPCO Shares shall be reduced by an amount equal to the capital of such shares immediately prior to the Amalgamation;
(C) for greater certainty, the capital of the Stately Shares shall be reduced by an amount equal to the capital of such shares immediately prior to the Amalgamation; and
(D) there shall be added to the capital of the Amalco Shares, in respect of the Amalco Shares issued by Amalco to the former holders of such Newco Shares, TPCO Shares and Stately Shares, an amount equal to the aggregate paid-up capital of the Newco Shares, the TPCO Shares and the Stately Shares immediately prior to the Amalgamation;
(xviii) each TPCO Stock Option that is outstanding immediately prior to the Amalgamation, whether vested or unvested (each such TPCO Stock Option, a "TPCO Replaced Option"), shall be, and shall be deemed to be, exchanged for an option (each, a "TPCO Replacement Option") entitling the holder to purchase that number of Amalco Shares equal to the product obtained when the number of TPCO Shares subject to such TPCO Replaced Option immediately prior to the Amalgamation is multiplied by the TPCO Exchange Ratio, which TPCO Replacement Option shall (A) continue to be governed by the TPCO Equity Incentive Plan or the Legacy Plans, as applicable, (B) have an exercise price for each Amalco Share that may be purchased under such TPCO Replacement Option (the "TPCO Replacement Option Exercise Price") equal to the quotient obtained when the exercise price per TPCO Share under the TPCO Replaced Option is divided by the TPCO Exchange Ratio (provided that no fractional Amalco Shares will be issued upon any particular exercise or settlement of TPCO Replacement Options, and the aggregate number of Amalco Shares to be issued upon exercise by a holder of one or more TPCO Replacement Options shall be rounded down to the nearest whole number (with all exercises that are effectuated concurrently by a holder of TPCO Replacement Options being aggregated before any such reduction is effectuated), and the aggregate exercise price payable on any particular exercise of TPCO Replacement Options shall be rounded up to the nearest whole cent (with all exercises that are effectuated concurrently by a holder of TPCO Replacement Options being aggregated before any such increase is effectuated)), and (C) otherwise have the same terms and conditions (including vesting, exercisability terms and expiry date) as were applicable to such TPCO Replaced Option immediately prior to the Amalgamation. Notwithstanding the foregoing:
(1) if necessary to satisfy the requirements of subsection 7(1.4) of the Tax Act in respect of the exchange of a shareTPCO Replaced Option for a TPCO Replacement Option pursuant to this Section 3.1.2(c)(xviii), the TPCO Replacement Option Exercise Price shall automatically be paid adjusted, effective as of and from the effective time of such exchange, so that the In-The-Money Amount of the TPCO Replacement Option (as adjusted) immediately after such exchange does not exceed the In-The-Money Amount of the TPCO Replaced Option immediately before such exchange;
(2) for any TPCO Replaced Option that is intended to qualify as an "incentive stock option" within the meaning of Section 422 of the U.S. Tax Code, it is intended that such adjustment described in cash Section 3.1.2(c)(xviii)(1) above will comply with Treasury Regulation Section 1.424(1)(a);
(3) for any TPCO Replaced Option that is a nonqualified option held by a U.S. taxpayer, it is intended that such adjustment described in Section 3.1.2(c)(xviii)(1) above will be implemented in a manner intended to comply with Section 409A of the dollar amount Code;
(xix) each TPCO Warrant (each such TPCO Warrant, a "TPCO Replaced Warrant") shall be, and shall be deemed to be, exchanged for a warrant (each, a "TPCO Replacement Warrant") entitling the holder to purchase that number of Amalco Shares equal to the product obtained when the number of TPCO Shares subject to such TPCO Replaced Warrant immediately prior to the Arrangement is multiplied by the TPCO Exchange Ratio, which TPCO Replacement Warrant shall (i) have an exercise price for each Amalco Share that may be purchased under such TPCO Replacement Warrant equal to the quotient obtained when the exercise price per TPCO Share under the TPCO Replaced Warrant is divided by the TPCO Exchange Ratio (provided that no fractional Amalco Shares will be issued upon any particular exercise or settlement of TPCO Replacement Warrants, and the aggregate number of Amalco Shares to be issued upon exercise by a holder of one or more TPCO Replacement Warrants shall be rounded down to the nearest whole number, and the aggregate exercise price payable on any particular exercise of TPCO Replacement Warrants shall be rounded up to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(ivii) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially have the same terms and conditions (including the exercisability terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if anyexpiry date) as were in effect applicable to such TPCO Replaced Warrant immediately prior to the Effective Time Arrangement, and (including any repurchase rights iii) continue to be evidenced by the certificate or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option other instrument evidencing such TPCO Replaced Warrant immediately prior to the Effective Time Arrangement;
(xx) each TPCO PSU that is outstanding immediately prior to the Amalgamation shall be, and shall be deemed to be, exchanged for a TPCO Replacement PSU evidencing a right to acquire, for no additional consideration, such number of Amalco Shares as is equal to: (A) that number of TPCO Shares that were issuable upon the vesting of such TPCO PSU immediately prior to the Amalgamation, multiplied by (yB) the Option TPCO Exchange Ratio, rounded down to the nearest whole number of shares Amalco Shares. All terms and conditions of Parent Common Stocka TPCO Replacement PSU, including the term to expiry or vesting, conditions to and manner of exercising or settlement, shall be the same as set out in the certificate for which it was exchanged, and the certificate previously evidencing such TPCO PSU shall thereafter evidence and be deemed to evidence such TPCO Replacement PSU;
(iixxi) each TPCO Non-Vesting RSU that is outstanding immediately prior to the Amalgamation shall be, and shall be deemed to be, exchanged for a TPCO Replacement RSU evidencing a right to acquire, for no additional consideration, such number of Amalco Shares as is equal to: (A) that number of TPCO Shares that were issuable upon the vesting of such TPCO Non-Vesting RSU immediately prior to the Amalgamation, multiplied by (B) the per share TPCO Exchange Ratio, rounded down to the nearest whole number of ▇▇▇▇▇▇ ▇▇▇▇▇▇. All terms and conditions of a TPCO Replacement RSU, including the term to expiry or vesting, conditions to and manner of exercising or settlement, shall be the same as set out in the certificate for which it was exchanged, and the certificate previously evidencing such TPCO Non-Vesting RSU shall thereafter evidence and be deemed to evidence such TPCO Replacement RSU;
(xxii) each Stately Warrant (each such Stately Warrant, a "Stately Replaced Warrant") shall be, and shall be deemed to be, exchanged for a warrant (each, a "Stately Replacement Warrant") entitling the holder to purchase that number of Amalco Shares equal to the product obtained when the number of Stately Shares subject to such Stately Replaced Warrant immediately prior to the Arrangement is multiplied by the Stately Exchange Ratio, which Stately Replacement Warrant shall (i) have an exercise price for the shares of Parent Common Stock issuable upon exercise of each Amalco Share that may be purchased under such Company Unexercised Option will be Stately Replacement Warrant equal to the quotient equal to (x) obtained when the per share exercise price for such Company Unexercised Option immediately prior per Stately Share under the Stately Replaced Warrant is divided by the Stately Exchange Ratio (provided that no fractional Amalco Shares will be issued upon any particular exercise or settlement of Stately Replacement Warrants, and the aggregate number of Amalco Shares to be issued upon exercise by a holder of one or more Stately Replacement Warrants shall be rounded down to the Effective Time divided by (y) nearest whole number, and the Option Exchange Ratio, aggregate exercise price payable on any particular exercise of Stately Replacement Warrants shall be rounded up to the nearest whole cent cent), (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to ii) otherwise have the same percentage of the total number of shares subject thereto terms and conditions (including exercisability terms and expiry date) as it was vested were applicable to such Stately Replaced Warrant immediately prior to the Effective TimeArrangement, except and (iii) continue to be evidenced by the certificate or other instrument evidencing such Stately Replaced Warrant immediately prior to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial lawArrangement;
(vid) The Company Option Plan number of Amalco Shares held by any Person shall be cancelled; and
(viirounded down to the nearest whole Amalco Share, and any fractional Amalco Share issued under Section3.1.2(c) without any action on the part of Parentshall be, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.deemed to be, cancelled without any additional compensation;
(e) the Amalco Share received by the Initial Newco Shareholder upon the Amalgamation under Section 3.1.2(c) in exchange for the
Appears in 1 contract
Sources: Business Combination Agreement (TPCO Holding Corp.)
Arrangement. Commencing on At the Effective Time, each of the following events shall occur and shall be deemed to occur in the following order sequentially as set out below without any further authorization, act or formality of or by formality, in each case, unless stated otherwise, effective as at five minute intervals starting at the Company, Parent or any other PersonEffective Time:
(a) Each Class A Convertible Preferred Shareeach of the Company Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall, Class B Convertible Preferred Sharewithout any further act or formality on the part of the Company or such Dissenting Holders, Class C Convertible Preferred Share be deemed to have been transferred to the Company and thereupon cancelled in consideration for a debt claim against the Company Common for the amount determined under Article 3, and:
(i) such Dissenting Holders shall cease to be the holders of such Company Shares and to have any rights as holders of such Company Shares, other than the right to be paid fair value by the Company for such Company Shares, as set out in Section 3.1; and
(ii) such Dissenting Holders’ names shall be removed as the holders of such Company Shares from the central securities register of the Company;
(b) each of the following steps shall occur simultaneously:
(i) (A) each Company Share outstanding immediately prior to the Effective Time shall be and Time, other than Company Shares cancelled under (a) above, shall, without any further action by or on behalf of a holder of Company Shares, be deemed to be irrevocably assigned and transferred by the holder thereof to Parent AcquisitionCo in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with for the formula set out on Exhibit A attached hereto.
Consideration; (bB) Upon the transfer of all Company Shares to Parent:
(i) each holder holders of such Company Shares shall cease to be the holder holders of such Company Shares and to have any rights as holders of such holder’s name Company Shares other than the right to be paid the Consideration in accordance with this Plan of Arrangement; (C) such holders’ names shall be removed from the applicable central securities register of the Company and added to the central securities register of Maxar U.S.; and (D) AcquisitionCo shall be deemed to be the transferee of such Company Shares (free and clear of all Liens) and shall be entered in the central securities register of the Company as the holder of such Company Shares;
(ii) legal and beneficial title Maxar U.S. will issue the Consideration to such the holders of Company Shares will vest referred to in Parent Section 2.3(b)(i) in respect of each Company Share that is assigned and Parent will be and be deemed transferred to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;AcquisitionCo pursuant Section 2.3(b)(i); and
(iii) no fractional shares in consideration for the issuance of Parent the Consideration by Maxar U.S. described in Section 2.3(b)(ii), AcquisitionCo will issue to Maxar U.S. one common share of AcquisitionCo in respect of each share of Maxar U.S. Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled that Maxar U.S. issues pursuant to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded to the nearest whole centSection 2.3(b)(ii), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(ivc) with respect to each share of Parent all Maxar U.S. Common Stock issued to a former holder of held by the Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) deemed to have been redeemed and cancelled by Maxar U.S. without any action further act or formality on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, Maxar U.S. in consideration for U.S.$1.00 in cash;
(d) each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) LTIP Unit shall be cancelled in accordance exchanged for a Replacement LTIP Unit, with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement such Replacement LTIP Unit being substantially similar to such LTIP Unit for which it was exchanged (other than the currency of the strike price or other document evidencing such Company Optionbase price, if any) as were applicable, which shall be denominated in effect immediately U.S. dollars and converted, as necessary, into U.S. dollars using the rate of exchange quoted by the Bank of Canada for the closest preceding Business Day prior to the Effective Time (including any repurchase rights or vesting provisions, if applicableDate), except that as adjusted to take into account the Arrangement pursuant to the terms of the applicable Company Equity Plan. For greater certainty, in respect of each LTIP Unit governed by section 7 of the Income Tax Act (Canada) or Section 409A of the U.S. Internal Revenue Code, as applicable, each LTIP Unit outstanding shall be exchanged for a Replacement LTIP Unit (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number to purchase one share of whole shares of Parent Maxar U.S. Common Stock equal (or, in the case of a U.S. taxpayer, to the product purchase one share of (x) the number of Company Maxar U.S. Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange RatioStock or receive its cash equivalent, rounded down to the nearest whole number of shares of Parent Common Stockas applicable), and (ii) the at a strike price or base price, as applicable, per share exercise price for the shares of Parent Maxar U.S. Common Stock issuable upon exercise of such Company Unexercised Option will be in U.S. dollars equal to the quotient equal to greater of (xi) the per share exercise price (in Canadian dollars converted into U.S. dollars using the rate of exchange quoted by the Bank of Canada for such Company Unexercised Option immediately the closest preceding Business Day prior to the Effective Time divided by (yDate) the Option Exchange Ratio, rounded up per Company Share subject to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested such LTIP Unit immediately prior to the Effective Time, except to and (ii) such minimum amount that meets the extent such Company Unexercised Option (either by its terms or by the terms requirements of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4paragraph 7(1.4)(c) of the Canadian Income Tax Act (Canada) or U.S. Treasury Regulations Section 1.409A-1(b)(5)(v)(D), as applicable; and
(e) the Company and AcquisitionCo shall be amalgamated to form one unlimited liability company (“Amalco”) with the equivalent provisions same effect as if they had amalgamated under applicable provincial lawSection 273 of the BCBCA (the “Amalgamation”) and, with effect from the Amalgamation:
(i) Maxar U.S. shall receive on the Amalgamation one Amalco common share in exchange for each AcquisitionCo common share previously held and all of the issued and outstanding Company Shares will be cancelled without any repayment of capital in respect thereof;
(ii) the name of Amalco shall be “Maxar Technologies Ltd.”;
(iii) Amalco shall be authorized to issue an unlimited number of common shares without par value;
(iv) the articles and notice of articles of Amalco shall be substantially in the form of AcquisitionCo’s articles and notice of articles;
(v) the first annual general meeting of Amalco or resolutions in lieu thereof shall be held within 18 months from the Effective Date;
(vi) The Company Option Plan the first directors of Amalco following the Amalgamation shall be cancelledbe: ·; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as stated capital of the Closing and shall common shares of Amalco will be an amount equal to the stated capital attributable to the common shares of no further force or effectAcquisitionCo immediately prior to the Amalgamation.
Appears in 1 contract
Arrangement. Commencing on at the Effective Time, the following shall occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality of or by the Company, Parent or any other Personformality:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share each HighGold In-The-Money Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall be immediately and unconditionally vest, notwithstanding the terms of the HighGold Equity Incentive Plan and shall, without any further action by or on behalf of any HighGold Optionholder, be deemed to be irrevocably assigned and transferred by such HighGold Optionholder (free and clear of all Liens) to Parent HighGold for cancellation in exchange for, for the Option Consideration. The HighGold Shares comprising the Option Consideration will be issued to such HighGold Optionholder as fully paid and non-assessable shares in each case, that number the capital of shares of Parent Common Stock as determined in accordance with the formula set out on Exhibit A attached hereto.HighGold;
(b) Upon each HighGold Out-of-the-Money Option outstanding immediately prior to the transfer Effective Time shall, without any further action by or on behalf of all Company Shares to Parent:any HighGold Optionholder, be cancelled in exchange for the OOTM Consideration;
(i) each holder of such Company Shares HighGold Optionholder shall cease to be the a holder of such Company Shares and HighGold Options, (ii) each such holder’s name shall be removed from the applicable securities each HighGold Option register of Company Shares;
(ii) legal maintained by HighGold, and beneficial title to such Company Shares will vest in Parent and Parent will be and be deemed to be the transferee and legal and beneficial owner of such Company Shares and will be entered in the applicable securities register of the Company as the sole shareholder thereof;
(iii) no fractional shares of Parent Common Stock shall be issued in connection with the Arrangement, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share, be paid in cash the dollar amount (rounded agreements relating to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior to the Closing Date;
(iv) with respect to each share of Parent Common Stock issued to a former holder of Company Shares, the name of such holder shall be entered in the register of holders of Parent Common Stock as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, each Company Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately prior to the Effective Time (including any repurchase rights or vesting provisions, if applicable), except that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock equal to the product of (x) the number of Company Common Shares that would be issuable upon exercise of the Company Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be equal to the quotient equal to (x) the per share exercise price for such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio, rounded up to the nearest whole cent (a “Parent Replacement Option”). Each Company Unexercised Option shall be vested immediately following the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option shall, in accordance with its terms, be subject to further adjustment to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent to the Effective Time. The exercise price under each Company Unexercised Option, the number of shares for which such Company Unexercised Option is exercisable and the terms and conditions of exercise of such Company Unexercised Option shall be determined in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant HighGold Options shall be terminated as of the Closing and shall be of no further force and effect;
(d) each Dissenting Shareholder shall transfer to the Purchaser all of the Dissent Shares held (free and clear of all Liens), without any further act or effectformality on its part, and in consideration therefor, the Purchaser shall issue to the Dissenting Shareholder a debt-claim to be paid the aggregate fair market value of those Dissent Shares as determined pursuant to Section 5.1, and in respect of the Dissent Shares so transferred
(a) the Dissenting Shareholder shall cease to be the holder thereof,
(b) the name of the Dissenting Shareholder shall be removed from the register maintained by or on behalf of HighGold in respect of the HighGold Shares,
(c) the Dissenting Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(d) the name of the Purchaser shall be added to the register maintained by or on behalf of HighGold in respect of the HighGold Shares as the holder thereof; and
(e) each HighGold Shareholder shall transfer to the Purchaser (free and clear of all Liens) each whole HighGold Share held (other than any HighGold Shares held by the Purchaser immediately before the Effective Time or acquired by the Purchaser from a Dissenting Shareholder under Section 3.1(d)), including the HighGold Shares issued pursuant to Section 3.1(a), in exchange for the Consideration for each HighGold Share held, and
(a) the HighGold Shareholder shall cease to be the holder thereof,
(b) the name of the HighGold Shareholder shall be removed from the register maintained by or on behalf of HighGold in respect of the HighGold Shares,
(c) the HighGold Shareholder shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to effect the transfer thereof, and
(d) the name of the Purchaser shall be added to the register maintained by or on behalf of HighGold in respect of the HighGold Shares as the holder thereof; it being expressly provided that the events provided for in this Section 3.1 will be deemed to occur on the Effective Date, notwithstanding that certain procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
Arrangement. Commencing on Subject to the terms hereof, commencing at the Effective Time, the following shall occur and shall be deemed to occur as more fully set forth in the following order without any further authorization, act or formality of or by the Company, Parent or any other PersonArrangement By-Law:
(a) Each Class A Convertible Preferred Share, Class B Convertible Preferred Share, Class C Convertible Preferred Share and Company Common Share 2.1.1 the Target Shares outstanding immediately prior to the Effective Time held by each holder thereof shall be transferred by the holder thereof to, and be deemed acquired by, Purchaser without any act or formality on the part of such holder or Purchaser, free and clear of any Liens, in exchange for such number of duly authorized, fully-paid and non-assessable Purchaser Shares equal to be irrevocably the product of the number of such Target Shares held by such holder multiplied by the Exchange Ratio;
2.1.2 with respect to each Target Share transferred to Parent in exchange for, in each case, that number of shares of Parent Common Stock as determined in accordance with Purchaser pursuant to Section 2.1.1;
2.1.2.1 the formula set out on Exhibit A attached hereto.
(b) Upon the transfer of all Company Shares to Parent:
(i) each holder of each such Company Shares Target Share shall cease to be the holder of such Company Shares Target Share and such holder’s 's name shall be removed from the applicable securities register of Company Shares;
(ii) legal and beneficial title Target Shares with respect to such Company Shares will vest in Parent and Parent will be and Target Shares; and
2.1.2.2 Purchaser shall be deemed to be the transferee and legal and beneficial owner of such Company Shares Target Share (free and will clear of any Liens) and shall be entered in the applicable securities register of the Company Target Shares as the sole shareholder registered holder thereof;; and
(iii) 2.1.2.3 no fractional shares of Parent Common Stock shall Purchaser Shares will be issued in connection with under the Arrangement, and no certificates or scrip for any such resulting fractional shares Purchaser Shares shall be issued. Any holder of Company Shares who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shallrounded down or up, in lieu of such fraction of a shareas appropriate, be paid in cash the dollar amount (rounded to the nearest closest whole cent)number, without interest, determined by multiplying such fraction by the closing price of a share of Parent Common Stock on the Nasdaq Market on the last trading day prior it being understood for greater certainty that 0.5 Purchaser Shares shall be rounded down to the Closing Date;
(iv) closest whole number; with respect to each share of Parent Common Stock Purchaser Share issued to a former holder of Company SharesTarget Shares pursuant to Section 2.1.1, the name of such holder shall be entered in the register of holders of Parent Common Stock Purchaser Shares as the registered holder thereof;
(v) without any action on the part of Parent, the Company or the holders of Company Options, except as otherwise required by applicable Legal Requirements, 2.1.3 each Company outstanding Target Option that is then outstanding and unexercised (a “Company Unexercised Option”) shall be cancelled in accordance with the terms of the Company Option Plan and, in exchange for such cancellation, such holder shall receive an option to purchase shares of Parent Common Stock with substantially the same terms and conditions (including the terms and conditions of any applicable stock option agreement or other document evidencing such Company Option, if any) as were in effect immediately not exercised prior to the Effective Time (including "Unexercised Options") shall, without any repurchase rights further action or vesting provisionsformality on the part of any holder of such Unexercised Option, if applicable), except be transferred by the holder thereof to Target in exchange for an option (a "Replacement Option") to purchase that (i) each Company Unexercised Option will be exercisable (or will become exercisable in accordance with its terms) solely for a number of whole shares of Parent Common Stock Purchaser Shares equal to the product of (x) the number of Company Common Target Shares that would be issuable upon exercise of the Company subject to such Unexercised Option immediately prior to the Effective Time multiplied by (y) the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and (ii) the per share . Such Replacement Option shall provide for an exercise price for the shares of Parent Common Stock issuable upon exercise of such Company Unexercised Option will be per Purchaser Share equal to the quotient equal to (x) the per share exercise price for per Target Share of such Company Unexercised Option immediately prior to the Effective Time divided by (y) the Option Exchange Ratio; provided, however, that in no circumstance shall the exercise price per Purchaser Share be less than $.01 and if the calculation results in an exercise price of less than $.01, the exercise price shall be deemed to be $.01 per Purchaser Share. If the foregoing calculation results in a Replacement Option (A) being exercisable for a fraction of a Purchaser Share, then the number of Purchaser Shares subject to such Replacement Option shall be rounded down to the next whole number of Purchaser Shares, or (B) having an exercise price per Purchaser Share that is a fraction of a cent, then the exercise price per Purchaser Share under such Replacement Option shall be rounded up to the nearest next whole cent (a “Parent cent. In addition, if required, the exercise price of each Replacement Option will be increased such that the excess, if any, of the aggregate fair market value of the Purchaser Shares subject to such Replacement Option immediately after the exchange over the aggregate exercise price under the Replacement Option does not exceed the excess, if any, of the aggregate fair market value of the Target Shares subject to the Target Stock Option Plan immediately before the exchange over the aggregate exercise price under such Target Stock Option Plan where all amounts are computed on the Effective Date. The term to expiry, conditions to and manner of exercising, vesting schedule and all other terms and conditions of such Replacement Option will be the same as the terms and conditions of such Unexercised Option”). Each Company Any document or agreement previously evidencing such Unexercised Option shall thereafter evidence and be vested immediately following deemed to evidence such Replacement Options;
2.1.4 the Target Stock Option Plan shall be cancelled;
2.1.5 effective from and after the Effective Time as to the same percentage of the total number of shares subject thereto as it was vested Time, each Target Warrant outstanding immediately prior to the Effective Time, except to the extent such Company Unexercised Option (either by its terms or by the terms of another Contract) provides for acceleration of vesting thereof. Each Company Unexercised Option time shall, in accordance with its termsthe Target Warrant Indenture, be subject entitle the holder thereof, at any time until the time of expiry and upon payment of the exercise price thereof, to further adjustment to reflect any stock split, division or subdivision purchase such number of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction subsequent duly authorized fully paid and non-assessable Purchaser Shares equal to the Effective TimeExchange Ratio. The exercise price under each Company Unexercised Optionterm to expiry, the number conditions to and manner of shares for which such Company Unexercised Option is exercisable exercising, vesting schedule and the all other terms and conditions of exercise of such Company Unexercised Option shall Target Warrant will continue to be determined governed by terms and conditions set forth in such manner so as to comply to the greatest extent possible with Subsection 7(1.4) of Target Warrant Indenture; and
2.1.6 the Canadian Tax Act and the equivalent provisions under applicable provincial law;
(vi) The Company Option Shareholder Rights Plan shall be cancelled; and
(vii) without any action on the part of Parent, the Company or the holder of that certain warrant to purchase Company Common Shares dated as of October 5, 2007 issued by the Company (the “Warrant”), the Warrant shall be terminated as of the Closing and shall be of no further force or effect.
Appears in 1 contract
Sources: Acquisition Agreement (Cambior Inc)