Articles of Arrangement. The Articles of Arrangement shall ----------------------- provide, among other things, that at the Effective Time, and upon the terms and subject to the conditions of this Agreement and the Plan of Arrangement, the following events shall take place in the order set out below: (a) if required by the Parent Parties, that the Company Reorganization be implemented in accordance with Article X hereof; --------- (b) each Company Share in respect of which the consideration payable to the holder thereof is in cash (in accordance with Section 1.6 below), will be ----------- transferred by the holder thereof, without any further act or formality on the part of such holder, to CallCo and the name of each such holder will be removed from the Company's register of holders of Company Shares and CallCo will be recorded as the holder of such Company Shares so exchanged and will be deemed to be the legal and beneficial holder thereof; (c) each Company Share in respect of which the consideration payable to the holder thereof is in Exchangeable Shares (in accordance with Section 1.6 ----------- below), will be transferred by the holder thereof, without any further act or formality on the part of such holder, to ExchangeCo and the name of each such holder will be removed from the Company's register of holders of Company Shares and added to the register of holders of Exchangeable Shares, and ExchangeCo will be recorded as the holder of such Company Shares so exchanged and will be deemed to be the legal and beneficial holder thereof; (d) the Company Convertible Debenture will be transferred by Element K to CallCo for the consideration set out in Section 1.7 below, without any ----------- further act or formality on the part of Element K, and the name of Element K will be removed from the Company's register of holders of Company Convertible Debentures and CallCo will be recorded as the holder of the Company Convertible Debenture and will be deemed to be the legal and beneficial holder thereof; (e) each Shareholder Convertible Debenture will be transferred by the holder thereof to CallCo for the consideration set out in Section 1.7 below, ----------- without any further act or formality on the part of such holder, and the name of each such holder will be removed from the Company's register of holders of the Shareholder Convertible Debentures and CallCo will be recorded as the holder of such Shareholder Convertible Debentures and will be deemed to be the legal and beneficial holder thereof; (f) subject to applicable securities laws and regulatory requirements, each Company Option that is outstanding and unexercised at or immediately prior to the Effective Time will be assumed by Parent in accordance with Section 1.15 hereof; ------------ (g) immediately after the transfer of the Company Convertible Debenture by Element K to CallCo, without any further act or formality on the part of CallCo, the Company Convertible Debenture will be converted into 7,394,574 Company Shares, or if the Company Reorganization is implemented, 7,394,574 New Common Shares in the capital of the Company; and (h) coincident with the transactions set out above in this Section ------- 1.5, Parent, Sub, CallCo, ExchangeCo and the Shareholder Representative will --- execute the Exchange and Support Agreement (the "Exchange and Support Agreement") in substantially the form attached hereto as Exhibit E, with such --------- changes as the parties hereto may agree in writing;
Appears in 1 contract
Articles of Arrangement. The Articles of Arrangement shall ----------------------- provideshall, among with such other things, that at matters as are necessary to effect the Effective TimeArrangement, and upon the terms and all as subject to the conditions provisions of this Agreement and the Plan of Arrangement, the following events shall take place in the order set out belowprovide substantially as follows:
(a) if required by the Parent Parties, that the Company Reorganization be implemented in accordance with Article X hereof; ---------
(b) each Company Share in respect of which the consideration payable Subject to the holder thereof is in cash (in accordance with Section 1.6 below2.3(b), each of the OncoGenex Debentures (other than OncoGenex Debentures held by Dissenting Securityholders who are ultimately entitled to be paid fair value of the OncoGenex Debentures held by them) will be ----------- transferred by the holder thereof, without any further act or formality on the part of such holderits part, to CallCo Sonus (or an Affiliate thereof) in exchange for (i) in the case of the BC Advantage Debenture, that number of fully paid and non-assessable Sonus Common Shares equal to the BC Advantage Shares Issuable, and (ii) in the case of the Other Debentures, for each $1,000 principal amount of Other Debentures transferred, that number of fully paid and non-assessable Sonus Common Shares equal to the Other Debenture Exchange Ratio multiplied by the Other Debenture Shares Issuable; provided, however, in no event shall Sonus be obligated to issue pursuant to this Section 2.3(a) a number of Sonus Common Shares that exceeds the number of Sonus Common Shares outstanding immediately prior to the Effective Time (the "Share Cap");
(b) To the extent that the Share Cap limits the number of Sonus Common Shares otherwise issuable pursuant to Section 2.3(a) and notwithstanding Section 2.3(a), only that portion of the OncoGenex Debentures as is equal to the Exchanged Portion shall be deemed to be transferred to Sonus and the Remaining Portion shall be deemed to remain outstanding and be held by the OncoGenex Debentureholders; and to the extent OncoGenex Debentures are transferred to Sonus pursuant to Section 2.3(a) and (b), the name of each such holder will be removed from the register of holders of OncoGenex Debentures and added to the register of holders of Sonus Common Shares, and Sonus will be recorded as the registered holder of OncoGenex Debentures transferred and will be deemed to be the legal and beneficial owner thereof. To the extent that there is a Remaining Portion, the OncoGenex Debentureholders will continue to be recorded as the registered holders of that portion of the OncoGenex Debentures that are not transferred and will be deemed to be the legal and beneficial owners thereof. For the purposes of Section 2.3(a) and this Section 2.3(b), the Other Debentures and BC Advantage Debenture shall rank pari-passu with each other;
(c) each OncoGenex Share (other than OncoGenex Shares held by Dissenting Securityholders who are ultimately entitled to be paid the fair value of the OncoGenex Shares held by them) will be transferred by the holder thereof, without any act or formality on its part, to Sonus in exchange for that number of fully paid and non assessable Sonus Common Shares equal to the Share Exchange Ratio, subject to Section 4; and the name of each such holder will be removed from the Company's register of holders of Company OncoGenex Shares and CallCo added to the register of holders of Sonus Common Shares, and Sonus will be recorded as the registered holder of such Company OncoGenex Shares so exchanged and will be deemed to be the legal and beneficial holder owner thereof;
(c) each Company Share in respect of which the consideration payable to the holder thereof is in Exchangeable Shares (in accordance with Section 1.6 ----------- below), will be transferred by the holder thereof, without any further act or formality on the part of such holder, to ExchangeCo and the name of each such holder will be removed from the Company's register of holders of Company Shares and added to the register of holders of Exchangeable Shares, and ExchangeCo will be recorded as the holder of such Company Shares so exchanged and will be deemed to be the legal and beneficial holder thereof;; and
(d) the Company Convertible Debenture will be transferred by Element K to CallCo for the consideration set out in Section 1.7 beloweach OncoGenex Option shall, without any ----------- further act or formality on the part of Element Kformality, and the name of Element K will be removed from the Company's register of holders of Company Convertible Debentures and CallCo will be recorded as the holder of the Company Convertible Debenture and will be deemed to be the legal and beneficial holder thereof;
(e) each Shareholder Convertible Debenture will be transferred exchanged by the holder thereof for an option (an “Assumed Option”) to CallCo purchase a number of Sonus Common Shares equal to the product of the Share Exchange Ratio multiplied by the number of OncoGenex Common Shares subject to such OncoGenex Option. Such Assumed Option shall provide for an exercise price per Sonus Common Share equal to the consideration set out in Section 1.7 below, ----------- without any further act or formality on the part exercise price per share of such holder, and the name of each such holder will be removed from the Company's register of holders of the Shareholder Convertible Debentures and CallCo will be recorded as the holder of such Shareholder Convertible Debentures and will be deemed to be the legal and beneficial holder thereof;
(f) subject to applicable securities laws and regulatory requirements, each Company OncoGenex Option that is outstanding and unexercised at or immediately prior to the Effective Time will divided by the Share Exchange Ratio and rounded up to the nearest one hundredth of a cent. If the foregoing calculation results in an Assumed Option being exercisable for a fraction of a Sonus Common Share, then the number of Sonus Common Shares subject to such Assumed Option shall be assumed by Parent in accordance with Section 1.15 hereof; ------------
(g) immediately after rounded down to the transfer next whole number of Sonus Common Shares. The term to expiry, conditions to and manner of exercise, vesting schedule and other terms and conditions of each of the Company Convertible Debenture by Element K Assumed Options shall be the same as the terms and conditions of the OncoGenex Option for which it is exchanged (except as provided for in the Assumption Agreement), and any document or agreement previously evidencing an OncoGenex Option shall be deemed to CallCobe an agreement between Sonus and the holder thereof evidencing such Assumed Option. Notwithstanding the above, without any further act or formality on in the part event a holder of CallCoan OncoGenex Option would be subject to Section 409A of the Code as a result of the application of this Section 2.3(d) (but for this sentence), the Company Convertible Debenture will be converted into 7,394,574 Company Shares, or if determination of the Company Reorganization is implemented, 7,394,574 New exercise price and number of Sonus Common Shares in that constitute the capital Assumed Option shall be adjusted as necessary such that the Assumed Option satisfies the requirements of the Company; and
(h) coincident with the transactions set out above in this Treasury Regulation Section ------- 1.5, Parent, Sub, CallCo, ExchangeCo and the Shareholder Representative will --- execute the Exchange and Support Agreement (the "Exchange and Support Agreement") in substantially the form attached hereto as Exhibit E, with such --------- changes as the parties hereto may agree in writing;1.409A-1(b)(5)(v)(D).
Appears in 1 contract
Articles of Arrangement. The Articles of Arrangement shall ----------------------- provideshall, among with such other thingsmatters as are necessary to effect the Arrangement, that implement the Plan of Arrangement and without limiting the generality of the foregoing, provide substantially that, commencing at the Effective Time, and upon the terms and subject to the conditions of this Agreement and the Plan of Arrangement, the following events steps shall take place occur in the order set out belowfollowing order:
(a) if required such technology, assets and other rights of the Company as may be identified by Parent shall be transferred at fair market value by the Company to Roxio CI Ltd., a wholly-owned subsidiary of Parent Partiesorganized under the laws of the Cayman Islands;
(b) the SRP Rights (as defined in Section 3.1(c)(iv)) under the Shareholder Rights Plan (as defined in Section 3.1(c)(iv)) be terminated for no consideration;
(c) each Company Common Share held by a shareholder of the Company, that other than (i) a shareholder who has exercised its Dissent Rights and is ultimately entitled to be paid the fair value of his Company Common Shares or (ii) Company Common Shares held by Parent or any affiliate thereof which shall not be exchanged under this Arrangement and shall remain outstanding as Company Common Shares held by Parent or any affiliate thereof, shall, without any action on the part of any of the parties hereto or any holder of securities of the Company Reorganization or Parent, be implemented transferred by the holder thereof to Parent in exchange for a fraction of a Parent Common Share calculated in accordance with Article X II hereof; ---------;
(bd) each the names of the holders of the Company Share in respect of which the consideration payable Common Shares transferred to the holder thereof is in cash (in accordance with Parent under Section 1.6 below), will be ----------- transferred by the holder thereof, without any further act or formality on the part of such holder, to CallCo and the name of each such holder will 1.3(c) shall be removed from the Company's register applicable registers of holders of Company Shares shareholders, and CallCo will Parent shall be recorded as the registered holder of such the Company Common Shares so exchanged and will shall be deemed to be the legal and beneficial holder owner thereof;
(c) each Company Share in respect of which the consideration payable to the holder thereof is in Exchangeable Shares (in accordance with Section 1.6 ----------- below), will be transferred by the holder thereof, without any further act or formality on the part of such holder, to ExchangeCo and the name of each such holder will be removed from the Company's register of holders of Company Shares and added to the register of holders of Exchangeable Shares, and ExchangeCo will be recorded as the holder of such Company Shares so exchanged and will be deemed to be the legal and beneficial holder thereof;
(d) the Company Convertible Debenture will be transferred by Element K to CallCo for the consideration set out in Section 1.7 below, without any ----------- further act or formality on the part of Element K, and the name of Element K will be removed from the Company's register of holders of Company Convertible Debentures and CallCo will be recorded as the holder of the Company Convertible Debenture and will be deemed to be the legal and beneficial holder thereof;; and
(e) each Shareholder Convertible Debenture will be transferred by such other matters as are necessary to effect the holder thereof to CallCo for the consideration set out in Section 1.7 below, ----------- without any further act or formality on the part of such holder, and the name of each such holder will be removed from the Company's register of holders of the Shareholder Convertible Debentures and CallCo will be recorded as the holder of such Shareholder Convertible Debentures and will be deemed to be the legal and beneficial holder thereof;
(f) subject to applicable securities laws and regulatory requirements, each Company Option that is outstanding and unexercised at or immediately prior to the Effective Time will be assumed by Parent in accordance with Section 1.15 hereof; ------------
(g) immediately after the transfer of the Company Convertible Debenture by Element K to CallCo, without any further act or formality on the part of CallCo, the Company Convertible Debenture will be converted into 7,394,574 Company Shares, or if the Company Reorganization is implemented, 7,394,574 New Common Shares in the capital of the Company; and
(h) coincident with the transactions set out above in this Section ------- 1.5, Parent, Sub, CallCo, ExchangeCo and the Shareholder Representative will --- execute the Exchange and Support Agreement (the "Exchange and Support Agreement") in substantially the form attached hereto as Exhibit E, with such --------- changes as the parties hereto may agree in writing;Arrangement.
Appears in 1 contract
Sources: Combination Agreement (Roxio Inc)
Articles of Arrangement. The Articles of Arrangement shall ----------------------- provideshall, among with such other things, that at matters as are necessary to effect the Effective TimeArrangement, and upon the terms and all as subject to the conditions provisions of this Agreement and the Plan of Arrangement, the following events shall take place in the order set out belowprovide substantially as follows:
(a) if required by the Parent Parties, that the Company Reorganization be implemented in accordance with Article X hereof; ---------
(b) each Company Share in respect of which the consideration payable Subject to the holder thereof is in cash (in accordance with Section 1.6 below2.3(b), each of the OncoGenex Debentures (other than OncoGenex Debentures held by Dissenting Securityholders who are ultimately entitled to be paid fair value of the OncoGenex Debentures held by them) will be ----------- transferred by the holder thereof, without any further act or formality on the part of such holderits part, to CallCo Sonus (or an Affiliate thereof) in exchange for (i) in the case of the BC Advantage Debenture, that number of fully paid and non-assessable Sonus Common Shares equal to the BC Advantage Shares Issuable, and (ii) in the case of the Other Debentures, for each $1,000 principal amount of Other Debentures transferred, that number of fully paid and non-assessable Sonus Common Shares equal to the Other Debenture Exchange Ratio multiplied by the Other Debenture Shares Issuable; provided, however, in no event shall Sonus be obligated to issue pursuant to this Section 2.3(a) a number of Sonus Common Shares that exceeds the number of Sonus Common Shares outstanding immediately prior to the Effective Time (the "Share Cap");
(b) To the extent that the Share Cap limits the number of Sonus Common Shares otherwise issuable pursuant to Section 2.3(a) and notwithstanding Section 2.3(a), only that portion of the OncoGenex Debentures as is equal to the Exchanged Portion shall be deemed to be transferred to Sonus and the Remaining Portion shall be deemed to remain outstanding and be held by the OncoGenex Debentureholders; and to the extent OncoGenex Debentures are transferred to Sonus pursuant to Section 2.3(a) and (b), the name of each such holder will be removed from the register of holders of OncoGenex Debentures and added to the register of holders of Sonus Common Shares, and Sonus will be recorded as the registered holder of OncoGenex Debentures transferred and will be deemed to be the legal and beneficial owner thereof. To the extent that there is a Remaining Portion, the OncoGenex Debentureholders will continue to be recorded as the registered holders of that portion of the OncoGenex Debentures that are not transferred and will be deemed to be the legal and beneficial owners thereof. For the purposes of Section 2.3(a) and this Section 2.3(b), the Other Debentures and BC Advantage Debenture shall rank pari-passu with each other;
(c) each OncoGenex Share (other than OncoGenex Shares held by Dissenting Securityholders who are ultimately entitled to be paid the fair value of the OncoGenex Shares held by them) will be transferred by the holder thereof, without any act or formality on its part, to Sonus in exchange for that number of fully paid and non assessable Sonus Common Shares equal to the Share Exchange Ratio, subject to Section 4; and the name of each such holder will be removed from the Company's register of holders of Company OncoGenex Shares and CallCo added to the register of holders of Sonus Common Shares, and Sonus will be recorded as the registered holder of such Company OncoGenex Shares so exchanged and will be deemed to be the legal and beneficial holder owner thereof;
(c) each Company Share in respect of which the consideration payable to the holder thereof is in Exchangeable Shares (in accordance with Section 1.6 ----------- below), will be transferred by the holder thereof, without any further act or formality on the part of such holder, to ExchangeCo and the name of each such holder will be removed from the Company's register of holders of Company Shares and added to the register of holders of Exchangeable Shares, and ExchangeCo will be recorded as the holder of such Company Shares so exchanged and will be deemed to be the legal and beneficial holder thereof;; and
(d) the Company Convertible Debenture will be transferred by Element K to CallCo for the consideration set out in Section 1.7 beloweach OncoGenex Option shall, without any ----------- further act or formality on the part of Element Kformality, and the name of Element K will be removed from the Company's register of holders of Company Convertible Debentures and CallCo will be recorded as the holder of the Company Convertible Debenture and will be deemed to be the legal and beneficial holder thereof;
(e) each Shareholder Convertible Debenture will be transferred exchanged by the holder thereof for an option (an "Assumed Option") to CallCo purchase a number of Sonus Common Shares equal to the product of the Share Exchange Ratio multiplied by the number of OncoGenex Common Shares subject to such OncoGenex Option. Such Assumed Option shall provide for an exercise price per Sonus Common Share equal to the consideration set out in Section 1.7 below, ----------- without any further act or formality on the part exercise price per share of such holder, and the name of each such holder will be removed from the Company's register of holders of the Shareholder Convertible Debentures and CallCo will be recorded as the holder of such Shareholder Convertible Debentures and will be deemed to be the legal and beneficial holder thereof;
(f) subject to applicable securities laws and regulatory requirements, each Company OncoGenex Option that is outstanding and unexercised at or immediately prior to the Effective Time will divided by the Share Exchange Ratio and rounded up to the nearest one hundredth of a cent. If the foregoing calculation results in an Assumed Option being exercisable for a fraction of a Sonus Common Share, then the number of Sonus Common Shares subject to such Assumed Option shall be assumed by Parent in accordance with Section 1.15 hereof; ------------
(g) immediately after rounded down to the transfer next whole number of Sonus Common Shares. The term to expiry, conditions to and manner of exercise, vesting schedule and other terms and conditions of each of the Company Convertible Debenture by Element K Assumed Options shall be the same as the terms and conditions of the OncoGenex Option for which it is exchanged (except as provided for in the Assumption Agreement), and any document or agreement previously evidencing an OncoGenex Option shall be deemed to CallCobe an agreement between Sonus and the holder thereof evidencing such Assumed Option. Notwithstanding the above, without any further act or formality on in the part event a holder of CallCoan OncoGenex Option would be subject to Section 409A of the Code as a result of the application of this Section 2.3(d) (but for this sentence), the Company Convertible Debenture will be converted into 7,394,574 Company Shares, or if determination of the Company Reorganization is implemented, 7,394,574 New exercise price and number of Sonus Common Shares in that constitute the capital Assumed Option shall be adjusted as necessary such that the Assumed Option satisfies the requirements of the Company; and
(h) coincident with the transactions set out above in this Treasury Regulation Section ------- 1.5, Parent, Sub, CallCo, ExchangeCo and the Shareholder Representative will --- execute the Exchange and Support Agreement (the "Exchange and Support Agreement") in substantially the form attached hereto as Exhibit E, with such --------- changes as the parties hereto may agree in writing;1.409A-1(b)(5)(v)(D).
Appears in 1 contract