Certificates and Payments. (a) Following receipt of the Final Order and prior to the Effective Time, Parent shall deliver or arrange to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of the CRP Agreement. (b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same). (c) Until surrendered as contemplated by this Section 5.1, each certificate that immediately prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaser. (d) In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Shares that were transferred pursuant to Section 3.1(d) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration is to be delivered shall as a condition precedent to the delivery of such Share Consideration, give a bond satisfactory to Parent and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to have been lost, stolen or destroyed. (e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement. (f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind. (g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Certificates and Payments. (a) Following receipt of the Final Order and 5.1 On or prior to the Business Day preceding the Arrangement Effective Time, Parent shall deliver the Company will deposit or arrange cause to be delivered deposited with the Exchange Agent, for the benefit of and to be held on behalf of the Company Preferred Shareholders, certificates representing or evidence in book-entry form of, the Company Common Shares issuable to Company Preferred Shareholders pursuant to Section 3.1(f).
5.2 Following the deposit with the Exchange Agent of the certificates or other evidence specified in Section 5.1, the Company will be fully and completely discharged from its obligation to issue Company Common Shares to Company Preferred Shareholders pursuant to Section 3.1(f), and the rights of such holders will be limited to receiving, from the Exchange Agent, the Exchange Consideration to which they are entitled in accordance with this Plan of Arrangement.
5.3 On the Effective Date, immediately prior to the Depositary Arrangement Effective Time, Prospector and Newco will deposit or cause to be deposited with the Share Consideration Exchange Agent (together with cash in lieu i) for the benefit of fractional Parent Sharesand to be held on behalf of the holders of Prospector Shares and holders of Prospector Warrants entitled to receive ▇▇▇▇▇▇ ▇▇▇▇▇▇ and Amalco Warrants (including Amalco Vesting Sponsor Warrants) pursuant to Section 3.1(b), evidence in book-entry form of the Amalco Shares and Amalco Warrants (including Amalco Vesting Sponsor Warrants), and (ii) for the benefit of and to be held on behalf of the Company Shareholders entitled to receive Amalco Shares pursuant to Section 3.1(h), evidence of the Exchange Consideration in book-entry form.
5.4 Following the deposit with the Exchange Agent of the certificates or Direct Registration System Advices representing other evidence specified in Section 5.3, each of Amalco and Surviving Company will be fully and completely discharged from its obligation to pay the Parent Exchange Consideration and the Surviving Company Shares required to be issued to the Company Shareholders pursuant to Section 3.1(h) and 3.1(j) respectively, and to issue the Amalco Shares and Surviving Company Shares to holders of Prospector Shares and the Amalco Warrants (including Amalco Vesting Sponsor Warrants) and Surviving Company Warrants (including Surviving Company Vesting Sponsor Warrants) to holders of Prospector New Warrants (including Prospector New Vesting Sponsor Warrants), in each case, pursuant to Section 3.1(b) and 3.1(j) respectively, and the rights of such holders will be limited to receiving, from the Exchange Agent, the Amalco Shares, Amalco Warrants (including Amalco Vesting Sponsor Warrants), Surviving Company Shares or Surviving Company Warrants (including Surviving Company Vesting Sponsor Warrants), as applicable, to which they are entitled in accordance with Section 3.1(d) hereofthis Plan of Arrangement.
5.5 Until such time as a Company Shareholder deposits with the Exchange Agent a duly completed Letter of Transmittal, which Parent Share evidence shall be held documents, certificates and instruments contemplated by the Depositary Letter of Transmittal, as agent applicable, and nominee for such former other documents and instruments as the Exchange Agent, the Company Shareholders for distribution or Prospector (or Surviving Company, as the case may be) reasonably require, the payment or delivery to which such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to Shareholder is entitled will be delivered to the Escrow Agent the aggregate CRP required to be or paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall Exchange Agent to be held as agent on behalf of and for the benefit of such Company Shareholder for delivery to such Company Shareholder without interest and net of all applicable withholdings and other taxes, if any, upon delivery of the Letter of Transmittal, documents, certificates and instruments contemplated by the Escrow Agent Letter of Transmittal and such other documents, certificates and instruments as agent and nominee for such former the Exchange Agent, the Company Shareholders for distribution to such former Company Shareholders in accordance with or Prospector (or Surviving Company, as the provisions of the CRP Agreementcase may be) reasonably require.
(b) 5.6 Upon surrender to the Depositary Exchange Agent for cancellation of a certificate which that immediately prior to the Arrangement Effective Time represented outstanding one or more Company Shares that were transferred pursuant to Section 3.1(d)Shares, together with a duly completed and executed Letter of Transmittal and such additional documents documents, certificates and instruments as the Depositary Exchange Agent, the Company or Prospector (or Surviving Company, as the case may be) may reasonably require, the Company Shareholder represented by holder of such surrendered certificate shall certificate, or the deliverer of such Company Letter of Transmittal will be entitled to receive in exchange therefor the Considerationreceive, and the Depositary shall Exchange Agent will, as promptly as practicable after the Arrangement Effective Time, deliver to such Company Shareholder holder, the Share Considerationcertificate(s) representing or other evidence of, which the Exchange Consideration that such Company Shareholder has the right is entitled to receive under the Arrangement for such Company Shares Arrangement, and any certificate so surrendered shall will forthwith be cancelled. Notwithstanding .
5.7 If any former Company Shareholder fails to deliver to the foregoingExchange Agent the certificates, a documents or instruments required to be delivered to the Exchange Agent under this Article 5 in order for such former Company RSU Holder, in his, her or its capacity as such, shall not be obligated Shareholder to deposit certificates representing receive the underlying Company Shares (including those received consideration which such former holder is entitled to receive pursuant to Section 3.1(c)3.1 on or before the day immediately prior to the sixth anniversary of the Arrangement Effective Time, and any right or claim to payment hereunder that remains outstanding, on the day before the sixth anniversary of the Arrangement Effective Time, (i) in order will cease to represent a right or claim of any kind or nature and the right of the holder to receive the Consideration applicable consideration pursuant to this Plan of Arrangement will terminate and any applicable consideration held by the Exchange Agent in trust for such former holder will be deemed to be surrendered and forfeited to Surviving Company or its successors for no consideration, and (ii) any certificate representing Company Shares formerly held by such former holder will cease to represent a claim of any nature whatsoever and will be deemed to have been surrendered to Surviving Company and will be cancelled. None of the Company, Amalco or Surviving Company or any of their respective successors, will be liable to any Person in respect of any consideration (including any consideration previously held by the Exchange Agent in trust for any such former holder) which such is forfeited to the Company, Amalco or Surviving Company RSU Holder has the right or delivered to receive under any public official pursuant to any applicable abandoned property, escheat or similar law.
5.8 After the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (Effective Time and the Letter of Transmittal shall provide for same).
(c) Until until surrendered as contemplated by this Section 5.1Article 5, each certificate that immediately prior to the Arrangement Effective Time represented one or more Company Shares shall will be deemed after the Effective Time at all times to represent only the right to receive upon certificate(s) representing or other evidence of, the Amalco Shares that such surrender the Consideration to which the holder Company Shareholder is entitled to receive in lieu of such certificate as contemplated in accordance with this Article 5, less any amounts withheld pursuant to Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaser6.2.
(d) In the event 5.9 If any certificate which that immediately prior to the Arrangement Effective Time represented one or more outstanding Company Shares that were transferred exchanged pursuant to Section 3.1(d) shall have Article 3 has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary Exchange Agent will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration Amalco Shares that such Person is entitled to receive pursuant to Article 3, deliverable in accordance with such holder’s Letter of Transmittal. .
5.10 When authorizing the delivery of such payment consideration in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration the consideration is to be being delivered shall must, as a condition precedent to the delivery of such Share Considerationconsideration, give a bond satisfactory to Parent the Company, Amalco or Surviving Company and the Depositary (acting reasonably) Exchange Agent in such sum as Parent the Company, Amalco, Surviving Company and the Exchange Agent may direct, direct or otherwise indemnify Parent the Company, Amalco, Surviving Company and Company the Exchange Agent in a manner satisfactory to Parent and the Company, acting reasonablyAmalco, Surviving Company and the Exchange Agent against any claim that may be made against Parentthe Company, Purchaser and Amalco, Surviving Company or the Exchange Agent with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall 5.11 In no event will any Person be entitled to deduct and withhold from any amount payable a fractional Amalco Share or Surviving Company. Where the aggregate number of Amalco Shares or Surviving Company Shares to any be issued to a Person under pursuant to the Plan of Arrangement, such amounts as Parent, Purchaser, Arrangement would result in a fraction of an Amalco Share or Surviving Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax ActShare being issuable, the United States Internal Revenue Code number of 1986Amalco Shares or Surviving Company Shares to be received by such Person will be rounded down to the nearest whole Amalco Share or Surviving Company Share, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreementapplicable.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Sources: Business Combination Agreement (Prospector Capital Corp.)
Certificates and Payments. 4.1 K▇▇▇▇▇ will deposit in with the Depositary the K▇▇▇▇▇ Shares to satisfy the consideration issuable and/or payable to the PMI Shareholders pursuant to this Plan of Arrangement (a) Following receipt other than PMI Shareholders exercising Dissent Rights and who have not withdrawn their notice of objection).
4.2 After the Final Order and Effective Date, certificates formerly representing PMI Shares which are held by a PMI Shareholder will, except for PMI Shares held by Dissenters, represent only the right to receive the consideration issuable and/or payable therefor pursuant to §3.1 in accordance with the terms of this Plan of Arrangement.
4.3 No dividends or other distributions declared or made after the Effective Date with respect to the K▇▇▇▇▇ Shares with a record date after the Effective Date will be payable or paid to the holder of any unsurrendered certificate or certificates for PMI Shares which, immediately prior to the Effective TimeDate, Parent shall deliver represented outstanding PMI Shares and will not be payable or arrange paid until the surrender of certificates for PMI Shares for exchange for the consideration issuable and/or payable therefor pursuant to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders §3.1 in accordance with the provisions terms of Article 5 hereof. Following receipt this Plan of Arrangement.
4.4 As soon as reasonably practicable after the Effective Date (subject to §6.2), the Depositary will forward to each PMI Shareholder that submitted a duly completed Transmittal Letter to the Depositary, together with the certificate (if any) representing the PMI Shares held by such PMI Shareholder, the certificates representing the K▇▇▇▇▇ Shares issued to such PMI Shareholder pursuant to §3.1(b), which shares will be registered in such name or names and either (i) delivered to the address or addresses as such PMI Shareholder directed in their Transmittal Letter or (ii) made available for pick up at the offices of the Final Order and Depositary in accordance with the instructions of the PMI Shareholder in the Transmittal Letter.
4.5 PMI Shareholders that did not submit an effective Transmittal Letter prior to the Effective TimeDate may take delivery of the consideration issuable or payable to them by delivering the certificates representing PMI Shares or PMI Shares formerly held by them to the Depositary at the offices indicated in the Transmittal Letter. Such certificates must be accompanied by a duly completed Transmittal Letter, Purchaser shall deliver together with such other documents as the Depositary may require. Certificates representing the K▇▇▇▇▇ Shares issued to such PMI Shareholder pursuant to §3.1 will be registered in such name or arrange to be names and delivered to the Escrow Agent address or addresses as such PMI Shareholder directed in their Transmittal Letter or (ii) made available for pick up at the aggregate CRP required to be paid to offices of the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders Depositary in accordance with the provisions instructions of the CRP AgreementPMI Shareholder in the Transmittal Letter, as soon as reasonably practicable after receipt by the Depositary of the required certificates and documents.
(b) Upon surrender to the Depositary for cancellation of a 4.6 Any certificate which immediately prior to the Effective Time Date represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company PMI Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated surrendered, with all other instruments required by this Section 5.1Article 4, each certificate that immediately on or prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall Date, will cease to represent a any claim by against or interest of any former holder of Company Shares of any kind or nature against in PMI, K▇▇▇▇▇ or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaserthe Depositary.
(d) 4.7 In the event any certificate certificate, which immediately prior to before the Effective Time represented one or more outstanding Company PMI Shares that were transferred was exchanged pursuant to Section 3.1(d) shall have been §3.1, is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration consideration to which such Person is entitled in respect of the PMI Shares represented by such lost, stolen, or destroyed certificate pursuant to §3.1 deliverable in accordance with such holderPerson’s Letter of TransmittalTransmittal Letter. When authorizing such issuances or payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration consideration is to be delivered shall issued and/or paid will, as a condition precedent to the delivery of such Share Considerationissuance and/or payment thereof, give a bond satisfactory to Parent K▇▇▇▇▇ and the Depositary (acting reasonably) its transfer agent in such sum as Parent K▇▇▇▇▇ may direct, direct or otherwise indemnify Parent and Company K▇▇▇▇▇ in a manner satisfactory to Parent and Company, acting reasonablyit, against any claim Claim that may be made against Parent, Purchaser and Company one or both of them with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Certificates and Payments. 5.1 At or before the Closing Time:
(a) Following receipt New SPAC shall deposit, or cause to be deposited, in escrow with the Exchange Agent, for the benefit of and to be held on behalf of the Final Order and prior Company Securityholders entitled to the Effective Time, Parent shall deliver or arrange receive New SPAC Class A Common Shares pursuant to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent SharesSection 3.2(h), including certificates representing, or Direct Registration System Advices representing other evidence regarding the Parent issuance of, the New SPAC Class A Common Shares required that such Company Securityholders are entitled to be issued receive under the Arrangement (calculated without reference to the whether any Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Shareholder has exercised Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(dDissent Rights), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of the CRP Agreement.; and
(b) the Company shall deposit, or cause to be deposited, in escrow with the Exchange Agent, for the benefit of and to be held on behalf of the Company 2013 Warrantholders, Cdn$168,000 representing the aggregate Company 2013 Warrant Consideration.
5.2 Upon the surrender to the Depositary for cancellation Exchange Agent of a certificate (or where applicable, confirmation of book-entry only entries) which immediately prior to the Company Amalgamation Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d)or Company Warrants, as applicable, together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary Exchange Agent may reasonably require, the Exchange Agent shall deliver: (i) with respect to a Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor or a Company 2020 Warrantholder, book-entry only entries representing the Consideration, and the Depositary shall deliver to New SPAC Class A Common Shares that such Company Shareholder the Share Consideration, which such Company Shareholder has the right Securityholder is entitled to receive under the Arrangement for Arrangement; and (ii) with respect to a Company 2013 Warrantholder, payment by cheque or wire transfer representing the aggregate Company 2013 Warrant Consideration that such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right 2013 Warrantholder is entitled to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same)Arrangement, in each case, less any amounts required to be withheld pursuant to Section 6.2.
(c) 5.3 Until surrendered as contemplated by this Section 5.1Article 5, each certificate that which immediately prior to the Company Amalgamation Effective Time represented outstanding Company Shares or Company Warrants shall be deemed at all times after the Company Amalgamation Effective Time to represent only the right to receive upon such surrender the New SPAC Class A Common Shares or Company 2013 Warrant Consideration to (as applicable) which the such holder is entitled to receive in lieu of such certificate as contemplated in this pursuant to Section 5.1. 5.2.
5.4 Any such certificate formerly representing Company Shares or Company Warrants that is not duly surrendered deposited, together with all other documents required hereunder, on or before the sixth last Business Day before the third anniversary of the Effective Date shall cease to represent a Closing Date, and any right or claim by or interest of any former holder of Company Shares of any kind or nature against nature, including the right of a former Company Shareholder or in ParentCompany Warrantholder to receive certificates (or where applicable, Purchaser confirmation of book-entry only entries) representing New SPAC Class A Common Shares or Company. On such date, all the Company 2013 Warrant Consideration to which such former holder was is entitled pursuant to the Arrangement, shall terminate and be deemed to have been be surrendered and forfeited to PurchaserNew SPAC for no consideration and in respect of such forfeited New SPAC Class A Common Shares, such New SPAC Class A Common Shares shall be cancelled.
(d) 5.5 No Company Shareholder or Company Warrantholder shall be entitled to receive any consideration with respect to the Company Shares or the Company Warrants other than the consideration to which such holder is entitled to receive under the Arrangement and, for greater certainty, no such holder will be entitled to receive any interest, dividend, premium or other payment in connection therewith.
5.6 All dividends payable with respect to any New SPAC Class A Common Shares allotted and issued pursuant to this Plan of Arrangement for which a certificate has not been issued shall be paid or delivered to the Exchange Agent to be held by the Exchange Agent in trust for the registered holder thereof. The Exchange Agent shall pay and deliver to any such registered holder, as soon as reasonably practicable after application therefor is made by the registered holder to the Exchange Agent in such form as the Exchange Agent may reasonably require, such dividends and any interest thereon to which such holder is entitled, net of applicable withholding and other taxes.
5.7 In no event shall any Person be entitled to a fractional New SPAC Class A Common Share. Where the event aggregate number of New SPAC Class A Common Shares to be issued to a Person pursuant to the Plan of Arrangement would result in a fraction of a New SPAC Class A Common Share being issuable, the number of New SPAC Class A Common Shares to be received by such Person shall be rounded up or down to the nearest whole New SPAC Class A Common Share, with a fraction of 0.5 rounded up. No cash settlements shall be made with respect to fractional shares eliminated by rounding. Cash payments to the Company 2013 Warrantholders will be rounded up to the nearest nearest cent.
5.8 If any certificate which immediately prior to the Company Amalgamation Effective Time represented one or more outstanding Company Shares or Company Warrants that were transferred pursuant to Section 3.1(d) this Plan of Arrangement shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary Exchange Agent will deliver pay and deliver, in exchange for such lost, stolen or destroyed certificate, the Share New SPAC Class A Common Shares or Company 2013 Warrant Consideration deliverable in accordance with which such holder’s Letter of Transmittalholder is entitled to receive pursuant to Section 5.2, less any amounts required to be withheld pursuant to Section 6.2. When authorizing such payment and delivery in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration the payment is to be delivered shall made shall, as a condition precedent to the delivery of such Share Considerationthereof, give a bond satisfactory to Parent New SPAC and the Depositary (acting reasonably) Exchange Agent in such sum as Parent New SPAC may direct, or otherwise indemnify Parent New SPAC and Company the Exchange Agent in a manner satisfactory to Parent New SPAC and Company, acting reasonablythe Exchange Agent, against any claim that may be made against Parent, Purchaser and Company New SPAC or the Exchange Agent with respect to the certificate alleged to have been lost, stolen or destroyed.
(e5.9 Following the Closing Time, New SPAC shall prepare a register of the holders of options to acquire New SPAC Class A Common Shares issued pursuant to Section 3.2(h)(xii) Parent, Purchaser, Company or and 3.2(h)(xiii). Such register shall contain the Depositary shall be entitled to deduct name and withhold from any amount payable to any Person under the Plan address of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Acteach holder, the United States Internal Revenue Code number of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts New SPAC Class A Common Shares which are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid subject to the Person in respect of which such withholding was madeoption, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or per share exercise price and the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect expiry date of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreementoption.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Sources: Business Combination Agreement (Decarbonization Plus Acquisition Corp IV)
Certificates and Payments. (a) Following receipt of the Final Order and prior Section 5.1 Prior to the Effective Time, Parent shall deliver TopCo will deposit or arrange cause to be delivered deposited with the Exchange Agent, for the benefit of and to be held on behalf of the Depositary Company Shareholders entitled to receive the Share Exchange Consideration (together in accordance with cash in lieu of fractional Parent SharesSection 3.1(c)(xi), including certificates or Direct Registration System Advices representing evidence of the Parent Shares required Exchange Consideration in the book-entry form, provided that no Exchange Consideration will be deemed to be issued or delivered to any Company Shareholder unless and until such Company Shareholder shall have executed and delivered the Letter of Transmittal required by Section 3.1(c)(xi). All TopCo Common Shares and Company Earnout Shares issued as part of the Exchange Consideration pursuant to Section 3.1(c)(xi) shall be deemed to be validly issued and outstanding as fully paid and non-assessable shares for the purposes of the BCBCA.
Section 5.2 Following the deposit with the Exchange Agent of evidence of the Exchange Consideration in accordance with Section 5.1, TopCo will be fully and completely discharged from its obligation to pay the Exchange Consideration to the Company Shareholders pursuant to Section 3.1(c)(xi), and the rights of such holders will be limited to receiving, from the Exchange Agent, the TopCo Common Shares and the Company Earnout Shares to which they are entitled in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions this Plan of Article 5 hereofArrangement. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of the CRP Agreement.
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to After the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such until surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered cancellation as contemplated by this Section 5.1Article 5, each certificate that immediately prior to the Effective Time represented one or more Company Shares shall be deemed after the Effective Time at all times to represent only the right to receive upon such surrender in exchange therefor the Exchange Consideration to which in book-entry form, that the holder of such certificate is entitled to receive in lieu accordance with Section 3.1(c)(xi).
Section 5.3 Until such time as a Company Shareholder deposits with the Exchange Agent a duly completed Letter of Transmittal and such certificate documents, certificates and instruments contemplated by the Letter of Transmittal and such other documents and instruments as contemplated in this Section 5.1. Any such certificate formerly representing the Exchange Agent or TopCo reasonably require, that Company Shares Shareholder will not duly surrendered on be entitled to the Exchange Consideration, and no Exchange Consideration will be deemed to be issued or before the sixth anniversary delivered to that Company Shareholder and any evidence of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Exchange Consideration to which such former holder was Company Shareholder would otherwise be entitled shall will, in each case, be deemed held by the Exchange Agent as agent on behalf of and for the benefit of such Company Shareholder for issuance and delivery to have been surrendered such Company Shareholder, without interest and forfeited to Purchaser.
(d) In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Shares that were transferred pursuant to Section 3.1(d) shall have been lostnet of all applicable withholdings and other taxes, stolen or destroyedif any, upon delivery of the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s Letter of Transmittal. When authorizing , and such payment in exchange for any lostdocuments, stolen or destroyed certificate, the Person to whom such Share Consideration is to be delivered shall as a condition precedent to the delivery of such Share Consideration, give a bond satisfactory to Parent certificates and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively instruments contemplated by the CRP Agreement.
(f) Any exchange Letter of Transmittal, and such other documents, certificates and instruments as the Exchange Agent or transfer of Company Shares pursuant TopCo reasonably require, subject to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent SharesArticle 5.
Appears in 1 contract
Sources: Business Combination Agreement (Jupiter Acquisition Corp)
Certificates and Payments. (a) Following 51.1 The Engineer will, no later than 10 days after the receipt of an application for payment from the Final Order and prior to the Effective Time, Parent shall deliver or arrange to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders Contractor submitted in accordance with Section 3.1(d) hereofArticle 50 (Applications for Payment), which Parent Share evidence issue a certificate for payment in the amount applied for or in such other amount as the Engineer determines to be properly due. If the Engineer amends the application, he will promptly notify the Contractor in writing giving his reasons for the amendment.
51.2 The Owner shall be held by make prompt payment to the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders Contractor on account, in accordance with the provisions of Section 00 50 00, Article 5 hereof. Following receipt 2 of the Final Order and prior Agreement.
51.3 The Owner acknowledges that the Contractor or any Subcontractor has the right to the Effective Timeissue a Certificate of Substantial Performance, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions Builders' Lien Act; however, notwithstanding such right, the Engineer shall, no later than 10 days after the receipt of an application from the Contractor for a Substantial Completion Certificate of the CRP AgreementWork, make an inspection and assessment of the Work to verify the validity of the application. The Engineer shall, no later than seven days after his inspection, notify the Contractor of his approval or the reasons for his disapproval of the application. When the Engineer finds, in his opinion, that Substantial Completion of the Work has been reached, he will issue a Substantial Completion Certificate. The date of Substantial Completion of the Work shall be stated in the Certificate. Immediately following the issuance of the Certificate of Substantial Completion of the Work, the Engineer in consultation with the Contractor, shall establish a reasonable date for construction completion.
(b) Upon surrender to 51.4 Immediately following the Depositary for cancellation issuance of the Substantial Completion Certificate, the Engineer will issue a certificate which immediately prior to the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter for payment of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented holdback monies. The holdback monies authorized by such surrendered this certificate shall be entitled to receive in exchange therefor the Consideration, become due and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated by this Section 5.1, each certificate that immediately prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaser.
(d) In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Shares that were transferred pursuant to Section 3.1(d) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration is to be delivered shall as a condition precedent to the delivery of such Share Consideration, give a bond satisfactory to Parent and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expensesContractor on the 46th day following the date of Substantial Completion, as certified by the Engineer, providing that .1 the Contractor has provided to the Engineer a Certified Certificate of Title (or Titles) sufficient to fund any Withholding Obligation in respect of such Person; provided from the proper Land Titles Office evidencing that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect as of the transfer 46th day following the date of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange Substantial Completion, no Affidavit of ▇▇▇▇ or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens have been filed or other claims of third parties of matter recorded to make effective any kind.
(g) No dividend Builders' Lien or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.claim;
Appears in 1 contract
Sources: Construction Agreement
Certificates and Payments. (a) Following 4.1 Parent will, following receipt by Target of the Final Order and prior to the Effective Time, Parent shall deliver or arrange to be delivered to deposit in escrow with the Depositary the Share Consideration Parent Shares to satisfy the consideration issuable and/or payable to the Target Shareholders pursuant to this Plan of Arrangement (other than Target Shareholders exercising Dissent Rights and who have not withdrawn their notice of objection).
4.2 After the Effective Date, certificates formerly representing Target Shares which are held by a Target Shareholder will, except for Target Shares held by Dissenting Target Shareholders, represent only the right to receive the consideration issuable and/or payable therefor pursuant to Section 3.1 in accordance with the terms of this Plan of Arrangement.
4.3 No dividends or other distributions declared or made after the Effective Date with respect to the Parent Shares with a record date after the Effective Date will be payable or paid to the holder of any unsurrendered certificate or certificates for Target Shares which, immediately prior to the Effective Date, represented outstanding Target Shares and will not be payable or paid until the surrender of certificates for Target Shares for exchange for the consideration issuable and/or payable therefor pursuant to Section 3.1 in accordance with the terms of this Plan of Arrangement.
4.4 As soon as reasonably practicable after the Effective Date (subject to Section 6.2), the Depositary will forward to each Target Shareholder that submitted a duly completed Transmittal Letter to the Depositary, together with cash in lieu of fractional Parent Shares)the certificate (if any) representing the Target Shares held by such Target Shareholder, including the certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution Target Shareholder pursuant to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall shares will be held by registered in such name or names and either (i) delivered to the Escrow Agent address or addresses as agent and nominee such Target Shareholder directed in their Transmittal Letter or (ii) made available for such former Company Shareholders for distribution to such former Company Shareholders pick up at the offices of the Depositary in accordance with the provisions instructions of the CRP AgreementTarget Shareholder in the Transmittal Letter.
(b) Upon surrender 4.5 Target Shareholders that did not submit an effective Transmittal Letter prior to the Effective Date may take delivery of the consideration issuable or payable to them by delivering the certificates representing Target Shares or Target Shares formerly held by them to the Depositary at the offices indicated in the Transmittal Letter. Such certificates must be accompanied by a duly completed Transmittal Letter, together with such other documents as the Depositary may require. Certificates representing the Parent Shares issued to such Target Shareholder pursuant to Section 3.1 will be registered in such name or names and delivered to the address or addresses as such Target Shareholder directed in their Transmittal Letter or (ii) made available for cancellation pick up at the offices of a the Depositary in accordance with the instructions of the Target Shareholder in the Transmittal Letter, as soon as reasonably practicable after receipt by the Depositary of the required certificates and documents.
4.6 Any certificate which immediately prior to the Effective Time Date represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Target Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated surrendered, with all other instruments required by this Section 5.1Article 4, each certificate that immediately on or prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall Date, will cease to represent a any claim by against or interest of any former holder of Company Shares of any kind or nature against or in ParentTarget, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaserthe Depositary.
(d) 4.7 In the event any certificate certificate, which immediately prior to before the Effective Time represented one or more outstanding Company Target Shares that were transferred exchanged pursuant to Section 3.1(d) shall have been 3.1, is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration consideration to which such Person is entitled in respect of the Target Shares represented by such lost, stolen, or destroyed certificate pursuant to Section 3.1 deliverable in accordance with such holderPerson’s Letter of TransmittalTransmittal Letter. When authorizing such issuances or payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration consideration is to be delivered shall issued and/or paid will, as a condition precedent to the delivery of such Share Considerationissuance and/or payment thereof, give a bond satisfactory to Parent Purchaser and the Depositary (acting reasonably) its transfer agent in such sum as Parent Purchaser may direct, direct or otherwise indemnify Parent and Company Purchaser in a manner satisfactory to Parent and Company, acting reasonablyit, against any claim Claim that may be made against Parent, Purchaser and Company one or both of them with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Certificates and Payments. 2.16.1 The Engineer/Architect shall, within ten (10) days of receipt of an application for payment from the Contractor submitted in accordance with 2.15.0 APPLICATION FOR PAYMENT, issue a certificate for payment in the amount applied for or such amount as they shall determine to be properly due. If the Engineer/Architect amends the application, they shall promptly notify the Contractor in writing, giving their reason(s) for the amendment.
2.16.2 The Owner shall, within thirty (30) days of receipt and approval by the Owner of a certificate for payment from the Engineer/Architect, make payment to the Contractor on account.
2.16.3 Notwithstanding any other provisions of the Contract:
a) Where legislation permits and where, upon application by the Contractor, the Engineer/Architect has certified that a Subcontract has been totally performed to their satisfaction prior to the Substantial Performance of this Contract, the Owner may, at their discretion, pay the Contractor the holdback retained for such Subcontractor on the day following the expiration of the Statutory Limitations Period stipulated in the Mechanic’s Lien Act applicable to the place of the Work and subject to the following conditions:
(i) A copy of the Contract between the Subcontractor and the General Contractor must be submitted.
(ii) The Subcontract is completed without deficiencies.
(iii) The warranty for the Subcontract will not start until Substantial Performance of the General Contract.
(iv) The General Contractor provides an approved Statutory Declaration that all monies have been paid to the said Subcontractor.
(v) The General Contractor provides an approved Waiver of Lien from this Subcontractor.
(vi) The Contractor and the Subcontractor provide an approved Waiver of Claim for all work associated with this Subcontractor.
(vii) A certificate is issued by the Engineer/Architect indicating that the Subcontract has been totally completed to their satisfaction.
(viii) The Owner will, at that time, release the total amount specified on the Subcontractor’s Contract.
2.16.4 Notwithstanding the provisions of Paragraph 16.3 (a) Following and notwithstanding the wording of such certificate, the Contractor shall ensure that such work is protected pending the Total Performance of the Contract and be responsible for the correction of any defects in it regardless of whether or not they were apparent when such certificates were issued.
2.16.5 The Engineer/Architect shall within ten (10) days of receipt of an application from the Final Order Contractor for a Certificate of Substantial Performance make an inspection and prior assessment of the Work to verify the validity of the application. The Engineer/Architect shall within seven (7) days of their inspection notify the Contractor of their approval or the reasons for their disapproval of the application. When the Engineer/Architect finds the Work to be substantially performed, they shall issue such a certificate. The date of this certificate shall be the date of Substantial Performance of the Contract. Immediately following the issuance of the Certificate of Substantial Performance, the Engineer/Architect, in consultation with the Contractor, shall establish a reasonable date for the Total Performance of the Contract.
2.16.6 Following the issuance of the Certificate of Substantial Performance and upon receipt from the Contractor of all documentation called for in the Contract Documents, the Engineer/Architect shall issue a Certificate for Payment of holdback monies, providing that no lien or privilege claims against the Work exists, that the Contractor has submitted to the Effective TimeOwner a sworn statement that all accounts for labour, Parent shall deliver Subcontracts, products, construction machinery and equipment and any other indebtedness which may have been incurred by the Contractor in the Substantial Performance of the Work and for which the Owner might in any way be held responsible, have been paid in full and that the Contractor has submitted to the Owner a waiver of all claims associated with this project except holdback monies properly retained. The holdback monies will become due and payable on the day following the expiration of the Statutory Limitation Period stipulated in the Mechanic’s Lien Act applicable to the place of buildings. The Owner may retain out of such holdback monies any sum required by law to satisfy any liens against the Work or arrange other monetary claims against the Contractor which may be enforceable against the Owner.
2.16.7 The Engineer/Architect shall, within ten (10) days of receipt of an application from the Contractor for payment upon Total Performance of the Contract, make an inspection and assessment of the Work to verify the validity of the application. The Engineer/Architect shall, within seven (7) days of their inspection, notify the Contractor of their approval or the reasons for their disapproval of the application. When the Engineer/Architect finds the Work to be delivered totally performed to their satisfaction, they shall issue a Certificate of Total Performance and certify for payment the remaining monies due to the Depositary Contractor under the Share Consideration (together with cash in lieu of fractional Parent Shares)Contract, including certificates or Direct Registration System Advices representing the Parent Shares less any holdback monies which are required to be issued retained. The date of this certificate shall be the date of Total Performance of the Contract. The Owner shall, within thirty (30) days of issuance of such certificate, make payment to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders Contractor in accordance with the provisions of the CRP AgreementContract.
(b) Upon surrender 2.16.8 The release of any remaining holdback monies shall become due and payable on the day following the expiration of the Statutory Limitation period stipulated in the Mechanics’ Lien Act of the place of building provided that no claims against the Work exists and that the Contractor has submitted to the Depositary Owner a sworn statement that all accounts for cancellation labour, Subcontractors, products, construction machinery and equipment and any other indebtedness which may have been incurred by the Contractor in the Total Performance of a the Work and for which the Owner might in any way be held responsible have been paid in full, except holdback monies properly retained.
2.16.9 No certificate which immediately for payment, any payment made thereunder or any partial or entire use of occupancy of the Work by the Owner shall constitute an acceptance of any work or products not in accordance with the Contract Documents.
2.16.10 As of the date of Total Performance of the Work as set out in the Certificate of Total Performance of the Work, the Owner expressly waives and releases the Contractor from all claims against the Contractor including, without limitation, those that might arise from the negligence or breach of Contract by the Contractor except one or more of the following:
a) Those made in writing prior to the Effective Time represented outstanding Company Shares date of the Total Performance of the Work and still unsettled;
b) Those arising from the provisions of 2.12.0 INDEMNIFICATION or 2.26.0 WARRANTY;
c) Those made in writing within a period of six (6) years from the date of Substantial Performance of the Work, as set out in the Certificate of Substantial Performance of the Work or within such shorter period as may be prescribed by any Limitation Statute of the Province of Newfoundland and Labrador and arising from any liability of the Contractor for damages resulting from their performance of the Contract with respect to substantial defects or deficiencies in the Work for which the Contractor is proven responsible. As used herein, "substantial defects or deficiencies" means those defects or deficiencies in the Work which affect the Work to such an extent or in such manner that were transferred pursuant to Section 3.1(d)a significant part or the whole of the Work is unfit for the purpose intended by the Contract Documents.
2.16.11 As of the date of Total Performance of the Work, together with a duly completed and executed Letter as set out in the Certificate of Transmittal and such additional documents and instruments as the Depositary may reasonably requireTotal Performance of Work, the Company Shareholder represented Contractor expressly waives and releases the Owner from all claims against the Owner including, without limitation, those that might arise from the negligence or breach of Contract by such surrendered certificate shall be entitled to receive the Owner except those made in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated by this Section 5.1, each certificate that immediately writing prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive Contractor’s application for payment upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary Total Performance of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered Work and forfeited to Purchaserstill unsettled.
2.16.12 In the event of conflict between the provisions of the General Conditions and 2.24.0 DAMAGES AND MUTUAL RESPONSIBILITY, the provisions of this General Condition shall govern.
2.16.13 The holdback to be used by the Engineer/Architect when issuing certificates of payment will be ten (d10) percent of the value of the Work completed at the date of Contractor’s claim.
2.16.14 Notwithstanding any other provision of this Contract, the Owner may:
a) In the event of a claim by the Owner against the Contractor for damages arising out of the performance or non-performance of the Contract, withhold payment of any certificate which immediately prior amount equal to the Effective Time represented one or more outstanding Company Shares that were transferred pursuant alleged damages until the liability for damages is established, and no amount of interest will be paid on amounts held under this Clause;
b) Set-off amounts owing by the Contractor to Section 3.1(dthe Owner;
c) shall have been lostFollowing the issuance of the Certificate of Substantial Performance, stolen or destroyed, upon the making withhold payment of an affidavit of that fact amount equal to twice the cost as estimated by the Person claiming such certificate to be lostEngineer/Architect of remedying deficiencies until the issuance of a Certificate of Total Performance, stolen or destroyed, the Depositary and no amount of interest will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration is to be delivered shall as a condition precedent to the delivery of such Share Consideration, give a bond satisfactory to Parent and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of on amounts held under this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.Clause.
Appears in 1 contract
Sources: Stipulated Price Contract
Certificates and Payments. (a) Following receipt of the Final Order and prior to the Effective Time, Parent West Fraser shall deliver or arrange to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of the CRP AgreementConsideration.
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Company Qualifying Holdco Shares or Norbord Shares that were transferred pursuant to Section 3.1(d3.1(e) or 3.1(f), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Qualifying Holdco Shareholder or the Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Considerationtherefor, and the Depositary shall deliver to such Company Qualifying Holdco Shareholder or Shareholder, the Holdco Share Consideration or the Consideration, as applicable, which such Company Shareholder has the right to receive under the Arrangement for such Company Qualifying Holdco Shares or Norbord Shares, less any amounts withheld pursuant to Section 5.1(g), and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated by this Section 5.1, each certificate that immediately prior to the Effective Time represented Company Qualifying Holdco Shares or Norbord Shares that were transferred pursuant to Section 3.1(e) and Section 3.1(f), respectively, shall be deemed after the Effective Time of Section 3.1(e) and Section 3.1(f), respectively, to represent only the right to receive upon such surrender the Holdco Share Consideration or the Consideration (as applicable) to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1, less any amounts withheld pursuant to Section 5.1(g). Any such certificate formerly representing Company Norbord Shares or Qualifying Holdco Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Norbord Shares or Qualifying Holdco Shares of any kind or nature against or in Parent, Purchaser Norbord or CompanyWest Fraser. On such date, all Consideration or Holdco Share Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to PurchaserWest Fraser or Norbord, as applicable.
(d) Any payment made by way of cheque by the Depositary pursuant to the Plan of Arrangement that has not been deposited or has been returned to the Depositary or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature and the right of any Shareholder to receive the Consideration for Norbord Shares or of any Qualifying Holdco Shareholder to receive the Holdco Share Consideration pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited to West Fraser or Norbord, as applicable.
(e) In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Norbord Shares that were transferred pursuant to Section 3.1(d3.1(f) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration is to be delivered shall as a condition precedent to the delivery of such Share Consideration, give a bond satisfactory to Parent West Fraser and the Depositary (acting reasonably) in such sum as Parent West Fraser may direct, or otherwise indemnify Parent West Fraser and Company Norbord in a manner satisfactory to Parent West Fraser and CompanyNorbord, acting reasonably, against any claim that may be made against Parent, Purchaser West Fraser and Company Norbord with respect to the certificate alleged to have been lost, stolen or destroyed.
(ef) ParentOn the Effective Date, PurchaserNorbord shall deliver, Company or shall cause to be delivered, to each holder of Incentive Securities, as reflected on the register maintained by or on behalf of Norbord in respect of such Incentive Securities, a cheque representing the cash payment, if any, which such holder of Incentive Securities has the right to receive under this Plan of Arrangement for such Incentive Security, less any amounts withheld pursuant to Section 5.1(h) hereof.
(g) West Fraser, Norbord and the Depositary shall be entitled to deduct and withhold from any amount payable or deliverable to any Person under the Plan of ArrangementArrangement and from all dividends or other distributions or other consideration or payments otherwise payable or deliverable to any former securityholders of Norbord, such amounts as ParentWest Fraser, Purchaser, Company Norbord or the Depositary Depositary, as applicable, determines are required to deduct be deducted and withhold withheld with respect to such payment or delivery under the Tax Act, the United States Internal Revenue Code of 1986, as amended, Act or any provision of any other Law in respect of Taxes, or to meet any related remittance requirement (collectively, a "“Withholding Obligation"”). To the extent that amounts are so withheld, deducted and remitted, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Sources: Arrangement Agreement (Norbord Inc.)
Certificates and Payments. (a) Following receipt of Section 5.1 As soon as practicable following the Final Order Company Continuance and prior to the Effective Time, Parent shall deliver TopCo will deposit or arrange cause to be delivered deposited with the Exchange Agent, for the benefit of and to be held on behalf of the Depositary Company Shareholders entitled to receive the Share Exchange Consideration (together in accordance with cash in lieu of fractional Parent SharesSection 3.1(a)(i), including certificates or Direct Registration System Advices representing evidence of the Parent Shares required Exchange Consideration in the book-entry form, provided that no Exchange Consideration will be deemed to be issued or delivered to any Company Shareholder unless and until such Company Shareholder shall have executed and delivered the Letter of Transmittal required by Section 3.1(a)(i). All TopCo Common Shares and Company Earnout Shares issued as part of the Exchange Consideration pursuant to Section 3.1(a)(i) shall be deemed to be validly issued and outstanding as fully paid and non-assessable shares for the purposes of the ABCA.
Section 5.2 Following the deposit with the Exchange Agent of evidence of the Exchange Consideration in accordance with Section 5.1, TopCo will be fully and completely discharged from its obligation to pay the Exchange Consideration to the Company Shareholders pursuant to Section 3.1(a), and the rights of such holders will be limited to receiving, from the Exchange Agent, the TopCo Common Shares and the Company Earnout Shares to which they are entitled in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions this Plan of Article 5 hereofArrangement. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of the CRP Agreement.
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to After the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such until surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered cancellation as contemplated by this Section 5.1Article 5, each certificate that immediately prior to the Effective Time represented one or more Company Common Shares shall be deemed after the Effective Time at all times to represent only the right to receive upon such surrender in exchange therefor the Exchange Consideration to which in book-entry form, that the holder of such certificate is entitled to receive in lieu accordance with Section 3.1(a)(i).
Section 5.3 Until such time as a Company Shareholder deposits with the Exchange Agent a duly completed Letter of Transmittal and such certificate documents, certificates and instruments contemplated by the Letter of Transmittal and such other documents and instruments as contemplated in this Section 5.1. Any such certificate formerly representing the Exchange Agent or TopCo reasonably require, that Company Shares Shareholder will not duly surrendered on be entitled to the Exchange Consideration, and no Exchange Consideration will be deemed to be issued or before the sixth anniversary delivered to that Company Shareholder and any evidence of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Exchange Consideration to which such former holder was Company Shareholder would otherwise be entitled shall will, in each case, be deemed held by the Exchange Agent as agent on behalf of and for the benefit of such Company Shareholder for issuance and delivery to have been surrendered such Company Shareholder, without interest and forfeited net of all applicable withholdings and other taxes, if any, upon delivery of the Letter of Transmittal, and such documents, certificates and instruments contemplated by the Letter of Transmittal, and such other documents, certificates and instruments as the Exchange Agent or TopCo reasonably require, subject to Purchaserthe provisions of this Article 5.
Section 5.4 Upon surrender to the Exchange Agent for cancellation of a certificate (dor affidavit of loss in lieu thereof in the form required by TopCo and the Exchange Agent) In the event any certificate which that immediately prior to the Effective Time represented one or more outstanding Company Common Shares, or in the case of Company Common Shares that were transferred pursuant to Section 3.1(d) shall have been lostheld in the book-entry form, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s a properly completed and duly executed Letter of Transmittal. When authorizing , and such payment in exchange for any lostadditional documents, stolen or destroyed certificatecertificates and instruments as TopCo, the Person Company and the Exchange Agent may reasonably require, the holder of such surrendered certificate (or affidavit of loss in lieu thereof), or the deliverer of such Letter of Transmittal, as applicable, will be entitled to whom receive, and the Exchange Agent will, as promptly as practicable after the Effective Time, deliver to such Share holder, evidence of the Exchange Consideration, in book entry form, to which such holder is entitled under the Arrangement, and any certificate so surrendered will forthwith be cancelled.
Section 5.5 If any portion of the Exchange Consideration is to be delivered issued to a Person other than the Company Shareholder in whose name the surrendered certificate or the transferred Company Common Share in book-entry form is registered, it shall be a condition to the issuance of the applicable portion of the Exchange Consideration that (i) either such certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Company Common Share in book-entry form shall be properly transferred and (ii) the Person requesting such consideration pay to the Exchange Agent any transfer Taxes required as a condition precedent result of such consideration being issued to a Person other than the registered holder of such certificate or Company Common Share in book-entry form or establish to the delivery satisfaction of the Exchange Agent that such Share Consideration, give a bond satisfactory to Parent and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to transfer Taxes have been lost, stolen paid or destroyedare not payable.
Section 5.6 No interest will be paid or accrued on the Exchange Consideration (e) Parentor any portion thereof). From and after the Effective Time, Purchaseruntil surrendered or transferred, as applicable, in accordance with this Article 5, each Company Common Share shall solely represent the right to receive a portion of the Exchange Consideration to which such Company Common Share is entitled to receive in accordance with the Allocation Schedule.
Section 5.7 Any portion of the aggregate Exchange Consideration or the Depositary evidence thereof that remains unclaimed by the Company Shareholders six (6) years following the Effective Time shall be entitled delivered to deduct TopCo or as otherwise instructed by TopCo, and withhold from any amount payable right or claim to any Person payment under the Plan of Arrangement, such amounts as Parent, Purchaser, Company Arrangement that remains outstanding six (6) years following the Effective Date shall cease to represent a right or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision claim of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company kind or the Depositary shall also have nature and the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer Company Shareholders to receive the applicable portion of the CRP into escrow and any payments made pursuant to aggregate Exchange Consideration in accordance with the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall terminate and be free deemed to be surrendered and clear of any Liens or other claims of third parties of any kindforfeited to TopCo, for no consideration.
(g) Section 5.8 In no event will any Person be entitled to a fractional TopCo Common Share or fractional Company Earnout Share. Where the aggregate number of TopCo Common Shares or Company Earnout Shares to be issued to a Person pursuant to the Plan of Arrangement would result in a fraction of a TopCo Common Share or Company Earnout Share being issuable, the number of TopCo Common Shares and Company Earnout Shares to be received by such Person will be rounded down to the nearest whole TopCo Common Share or Company Earnout Share, as the case may be.
Section 5.9 No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares the Exchange Consideration with a record date after the Effective Time shall be paid delivered to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Common Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1Article 5. Subject to applicable Law law and to this Section 5.16.1, at the time of such compliance, there shall, in addition to the delivery of evidence of the portion of the Exchange Consideration to which such holder is thereby entitledentitled under the Arrangement, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent SharesExchange Consideration.
Appears in 1 contract
Sources: Business Combination Agreement (Bite Acquisition Corp.)
Certificates and Payments. (a) Following 4.1 Taseko will, following receipt by Curis of the Final Order and prior to the Effective TimeDate, Parent shall deliver deposit or arrange cause to be delivered to deposited with the Depositary the Share Consideration one or more certificates representing (together with cash in lieu i) that number of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Taseko Shares required to be issued to Curis Optionholders pursuant to Section 3.1(b); and (ii) that number of Taseko Shares required to be issued to Curis Shareholders pursuant to Section 3.1(c) (calculated with reference to the Company Shareholders number of Curis Shares in accordance with respect of which Dissenters have exercised, but not withdrawn Dissent Rights).
4.2 As soon as practicable following the later of the Effective Date, the holder of each Curis Option will be entitled to receive in exchange therefor a certificate representing the Taseko Shares which such holder is entitled to receive pursuant to Section 3.1(d3.1(b) hereof. From and after the Effective Time, each option certificate or option agreement which immediately prior to the Effective Time represented one or more Curis Options will thereafter be deemed to represent only the right to receive a certificate representing Taseko Shares issuable therefor pursuant to Section 3.1(b) . For the avoidance of doubt, neither an option certificate or option agreement nor a transmittal letter need be surrendered by a Curis Optionholder in order for such Curis Optionholder to receive the Taseko Shares such Curis Optionholder is entitled to receive pursuant to Section 3.1(b) .
4.3 Subject to Section 4.8, Taseko will cause the Depositary, as soon as practicable following the Effective Time, to deliver to each Curis Optionholder a certificate representing the Taseko Shares such Curis Optionholder is entitled to receive pursuant to Section 3.1(b), which Parent Share evidence shall certificates will be held delivered by first class mail (postage prepaid) to the Depositary address of such Curis Optionholder as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders maintained in accordance with the provisions record books of Article 5 hereof. Following receipt of the Final Order and Curis immediately prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to .
4.4 As soon as practicable following the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions later of the CRP Agreement.
Effective Date and the surrender by a Curis Shareholder (bother than a Dissenter) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d)Curis Shares, together with a duly completed and executed Transmittal Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by holder of such surrendered certificate shall will be entitled to receive in exchange therefor a certificate representing the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, Taseko Shares which such Company Shareholder has the right holder is entitled to receive under the Arrangement for such Company Shares pursuant to Section 3.1(c) and any certificate so surrendered shall will forthwith be cancelled. Notwithstanding From and after the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (Effective Time and the Letter of Transmittal shall provide for same).
(c) Until until surrendered as contemplated by this Section 5.14.4, each certificate that immediately prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaser.
(d) In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Curis Shares that were transferred will thereafter be deemed to represent only the right to receive the consideration issuable and/or payable therefor pursuant to Section 3.1(d3.1 in accordance with the terms of this Plan of Arrangement. Without limiting the generality of the foregoing, no dividends or other distributions declared or made after the Effective Date with respect to Taseko Shares with a record date after the Effective Date will be payable or paid to the holder of any unsurrendered certificate or certificates for Curis Shares which, immediately prior to the Effective Time, represented outstanding Curis Shares.
4.5 Subject to Section 4.7 and 4.8, Taseko will cause the Depositary, as soon as reasonably practicable after the later of the Effective Time and the date of the deposit by a Curis Shareholder of a duly completed Transmittal Letter and the other documentation required pursuant to Section 4.4, to deliver to such Curis Shareholder a certificate representing the Taseko Shares such Curis Shareholder is entitled to receive pursuant to Section 3.1(c), which certificates will be (i) delivered by first class mail (postage prepaid) to the address of such Curis Shareholder specified in their Transmittal Letter; (ii) made available for pick up at the offices of the Depositary in accordance with the instructions of such Curis Shareholder in their Transmittal Letter; or (iii) if the Transmittal Letter neither specifies an address as described in clause (i) nor contains instructions as described in clause (ii), forwarded by first class mail (postage prepaid) to such Curis Shareholder at the address of such Curis Shareholder as shown on the register of Curis Shares maintained by or on behalf of Curis immediately prior to the Effective Time.
4.6 If any former holder of Curis Shares exchanged pursuant to Section 3.1(c) has not surrendered the certificate representing such Curis Shares, together with all other instruments required by Section 4.4, on or prior to the sixth anniversary of the Effective Date, the Taseko Shares issued to such former holder of Curis Shares pursuant to Section 3.1(c) shall be automatically cancelled without any repayment of capital in respect thereof and the certificates representing such Taseko Shares held by the Depositary, together with all dividends, distributions or cash payments thereon, net of any applicable withholding or other taxes, held by the Depositary on behalf of such former holder of Curis Shares, will be delivered to Taseko, and such Taseko Shares will be cancelled by Taseko and the interest of the former holder of Curis Shares in such Taseko Shares, together with all entitlements to dividends, distributions or cash payments thereon held for such former holder, will be deemed to have been donated and surrendered to Taseko, for no consideration, as at such date and the name of such former registered holder shall be removed from the central securities register of Taseko with respect to such Taseko Shares. Any certificate which immediately prior to the Effective Time represented outstanding Curis Shares and which has not been surrendered, together with all other instruments required by Section 4.4, on or prior to the sixth anniversary of the Effective Date, will cease to represent any claim against or interest of any kind or nature in or against Curis, Taseko, the Depositary or any other person.
4.7 In the event any certificate, which immediately before the Effective Time represented one or more outstanding Curis Shares that was exchanged pursuant to Section 3.1(c), is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person former holder of Curis Shares claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration consideration to which such former holder of Curis Shares is entitled in respect of Curis Shares represented by such lost, stolen, or destroyed certificate pursuant to Section 3.1(c) deliverable in accordance with such former holder’s Letter of TransmittalTransmittal Letter. When authorizing such issuances or payment in exchange for any lost, stolen or destroyed certificate, the Person former holder of Curis Shares to whom such Share Consideration consideration is to be delivered shall issued and/or paid will, as a condition precedent to the delivery of such Share Considerationissuance and/or payment thereof, give a bond satisfactory to Parent Taseko and the Depositary (acting reasonably) its transfer agent in such sum as Parent Taseko may direct, direct or otherwise indemnify Parent and Company Taseko in a manner satisfactory to Parent and Company, acting reasonablyit, against any claim that may be made against Parent, Purchaser and Company one or both of them with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent4.8 Each of Taseko, Purchaser, Company or Curis and the Depositary shall be entitled to deduct and withhold from any amount Taseko Shares or other consideration otherwise issuable or payable pursuant to this Plan of Arrangement to any Person under the Plan holder of Arrangement, Curis Shares or Curis Options such amounts as ParentTaseko, Purchaser, Company Curis or the Depositary are Depositary, respectively, may be required to deduct and withhold with respect to such payment issuance or payment, as the case may be, under the Tax Act, the United States U.S. Internal Revenue Code of 1986, as amended, or any provision of provincial, state, local or foreign tax law, in each case as amended. Without limiting the generality of the foregoing, each of Taseko, Curis and the Depositary shall be entitled to deduct from the aggregate Option Consideration otherwise issuable to a Curis Optionholder pursuant to Section 3.1(b) that number of Taseko Shares which is equal to the quotient of (a) the Options Withholding Amount in respect of such Curis Optionholder divided by (b) the quotient of the Curis Share Value divided by the Exchange Ratio and, for the avoidance of doubt, the reduction in the number of Taseko Shares otherwise issuable to such Curis Optionholder shall constitute the full and total amount that Taseko, Curis or the Depositary shall be entitled to deduct and withhold in respect of any obligation of Taseko, Curis or the Depositary arising under the Tax Act, the U.S. Internal Revenue Code or any provision of provincial, state, local or foreign tax law, in each case as amended, in respect of the disposition of Curis Options to Taseko by such Curis Optionholder pursuant to Section 3.1(b) . Each of Taseko, Curis and the Depositary is hereby authorized to sell or otherwise dispose of, at such times and at such prices as it determines, in its sole discretion, such portion of the Taseko Shares otherwise issuable or payable to such holder as is necessary to provide sufficient funds to Taseko, Curis or the Depositary, as the case may be, to enable it to comply with such deduction or withholding requirement, and shall notify the holder thereof and remit to such holder any unapplied balance of the net proceeds of such sale or disposition (after deducting applicable sale commissions and any other Law (a "Withholding Obligation")reasonable expenses relating thereto) in lieu of the Taseko Shares or other consideration so sold or disposed of. To the extent that amounts Taseko Shares or other consideration are so withheldsold or disposed of, such withheld amounts amounts, or shares or other consideration so sold or disposed of, shall be treated for all purposes hereof as having been paid to the Person holder of the shares in respect of which such withholding deduction, withholding, sale or disposition was made, provided that such amounts withheld amounts, or the net proceeds of such sale or disposition, as the case may be, are actually remitted to the appropriate taxing authority. ParentEach of Taseko, Purchaser, Company Curis or the Depositary shall also have not be obligated to seek or obtain a minimum price for any of the right to withhold such number Taseko Shares or other consideration sold or disposed of Parent Shares otherwise issuable to such Person pursuant to this Plan by it hereunder, nor shall any of Arrangement as would them be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund liable for any Withholding Obligation in respect of such Person; provided that no sales loss arising out of any such Parent Shares shall occur in the United States sale or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreementdisposition.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Certificates and Payments. (a) Following receipt 5.1 At or before the Closing Time, New SPAC shall deposit, or cause to be deposited, in escrow with the Exchange Agent, for the benefit of and to be held on behalf of the Final Order and prior Company Securityholders entitled to the Effective Time, Parent shall deliver or arrange receive New SPAC Class A Common Shares pursuant to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent SharesSection 3.2(d), including certificates representing, or Direct Registration System Advices representing other evidence regarding the Parent issuance of, the New SPAC Class A Common Shares required that such Company Securityholders are entitled to be issued receive under the Arrangement (calculated without reference to the whether any Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Shareholder has exercised Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(dDissent Rights), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of the CRP Agreement.
(b) 5.2 Upon the surrender to the Depositary for cancellation Exchange Agent of a certificate (or where applicable, confirmation of book-entry only entries) which immediately prior to the Company Amalgamation Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d)Common Shares, Company Warrants or Company Options, as applicable, together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary Exchange Agent may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary Exchange Agent shall deliver with respect to a Company Shareholder, a Company Warrantholder or a Company Optionholder, book-entry only entries representing the New SPAC Class A Common Shares that such Company Shareholder the Share Consideration, which such Company Shareholder has the right Securityholder is entitled to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU HolderArrangement, in hiseach case, her or its capacity as such, shall not less any amounts required to be obligated to deposit certificates representing the underlying Company Shares (including those received withheld pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same)6.2.
(c) 5.3 Until surrendered as contemplated by this Section 5.1Article 5, each certificate that which immediately prior to the Company Amalgamation Effective Time represented outstanding Company Shares Common Shares, Company Warrants or Company Options shall be deemed at all times after the Company Amalgamation Effective Time to represent only the right to receive upon such surrender the Consideration to New SPAC Class A Common Shares which the such holder is entitled to receive in lieu of such certificate as contemplated in this pursuant to Section 5.1. 5.2.
5.4 Any such certificate formerly representing Company Shares Common Shares, Company Warrants or Company Options that is not duly surrendered deposited, together with all other documents required hereunder, on or before the sixth last Business Day before the third anniversary of the Effective Date shall cease to represent a Closing Date, and any right or claim by or interest of any former holder of Company Shares of any kind or nature against nature, including the right of a former Company Shareholder, Company Warrantholder or in ParentCompany Optionholder to receive certificates (or where applicable, Purchaser or Company. On such date, all Consideration confirmation of book-entry only entries) representing New SPAC Class A Common Shares to which such former holder was is entitled pursuant to the Arrangement, shall terminate and be deemed to have been be surrendered and forfeited to PurchaserNew SPAC for no consideration and in respect of such forfeited New SPAC Class A Common Shares, such New SPAC Class A Common Shares shall be cancelled.
(d) 5.5 No Company Shareholder, Company Warrantholder or Company Optionholder shall be entitled to receive any consideration with respect to the Company Common Shares, the Company Warrants or the Company Options other than the consideration to which such holder is entitled to receive under the Arrangement and, for greater certainty, no such holder will be entitled to receive any interest, dividend, premium or other payment in connection therewith.
5.6 All dividends payable with respect to any New SPAC Class A Common Shares allotted and issued pursuant to this Plan of Arrangement for which a certificate has not been issued shall be paid or delivered to the Exchange Agent to be held by the Exchange Agent in trust for the registered holder thereof. The Exchange Agent shall pay and deliver to any such registered holder, as soon as reasonably practicable after application therefor is made by the registered holder to the Exchange Agent in such form as the Exchange Agent may reasonably require, such dividends and any interest thereon to which such holder is entitled, net of applicable withholding and other taxes.
5.7 In no event shall any Person be entitled to a fractional New SPAC Class A Common Share. Where the event aggregate number of New SPAC Class A Common Shares to be issued to a Person pursuant to the Plan of Arrangement would result in a fraction of a New SPAC Class A Common Share being issuable, the number of New SPAC Class A Common Shares to be received by such Person shall be rounded up or down to the nearest whole New SPAC Class A Common Share, with a fraction of 0.5 rounded up. No cash settlements shall be made with respect to fractional shares eliminated by rounding.
5.8 If any certificate which immediately prior to the Company Amalgamation Effective Time represented one or more outstanding Company Shares Common Shares, Company Warrants or Company Options that were transferred pursuant to Section 3.1(d) this Plan of Arrangement shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary Exchange Agent will deliver pay and deliver, in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with New SPAC Class A Common Shares which such holder’s Letter of Transmittalholder is entitled to receive pursuant to Section 5.2, less any amounts required to be withheld pursuant to Section 6.2. When authorizing such payment and delivery in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration the payment is to be delivered shall made shall, as a condition precedent to the delivery of such Share Considerationthereof, give a bond satisfactory to Parent New SPAC and the Depositary (acting reasonably) Exchange Agent in such sum as Parent New SPAC may direct, or otherwise indemnify Parent New SPAC and Company the Exchange Agent in a manner satisfactory to Parent New SPAC and Company, acting reasonablythe Exchange Agent, against any claim that may be made against Parent, Purchaser and Company New SPAC or the Exchange Agent with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent5.9 Following the Closing Time, Purchaser, Company or New SPAC shall prepare a register of the Depositary holders of share awards to acquire New SPAC Class A Common Shares issued pursuant to Section 3.2(d)(xiii). Such register shall be entitled to deduct contain the name and withhold from any amount payable to any Person under the Plan address of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Acteach holder, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to share awards, the broker vesting provisions and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect the expiry date of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreementshare award.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Sources: Business Combination Agreement (Pyrophyte Acquisition Corp.)
Certificates and Payments. (a) Following receipt of the Final Order and prior to At or before the Effective Time:
(i) the Company shall deposit, Parent shall deliver or arrange cause to be delivered to deposited, in escrow with the Depositary Depositary:
(A) for the Share Consideration (together with cash in lieu benefit of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required and to be issued to held on behalf of the Company Shareholders in accordance with entitled to receive the Company Dividend pursuant to Section 3.1(d3.1(f), the Founders Dividend Amount;
(B) hereof, which Parent Share evidence shall for the benefit of and to be held by on behalf of the holders of Company Bond Warrants pursuant to Section 3.1(i), an amount equal to the aggregate of the Aggregate Equity Value per Share less the Bond Warrant Exercise Price for each such Company Bond Warrant that is to be cancelled pursuant to Section 3.1(i); and
(C) for the benefit of and to be held on behalf of the Company Performance Warrantholders pursuant to Section 3.1(j), an amount equal to the Aggregate Equity Value per Share less the Performance Warrant Exercise Price for each such Company Performance Warrants that is to be cancelled pursuant to Section 3.1(j);4
(ii) PubCo shall deposit, or cause to be deposited, in escrow with the Depositary as agent for the benefit of and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to held on behalf of the Company Shareholders in accordance with entitled to receive the PubCo Common Shares pursuant to Section 3.1(d3.1(l)(xiii), which CRP certificates representing, or other evidence regarding the issuance of, the PubCo Common Shares that such Company Shareholders are entitled to receive under the Arrangement (calculated without reference to whether any Company Shareholder has exercised Arrangement Dissent Rights);
(iii) PubCo shall deposit, or cause to be deposited, in escrow with the Depositary for the benefit of and to be held by on behalf of the Escrow Agent as agent and nominee for such former Company Shareholders for distribution entitled to receive the PubCo Warrants pursuant to Section 3.1(q) certificates representing, or other evidence regarding the issuance of, the PubCo Warrants that such former Company Shareholders and Company Performance Warrantholders5 are entitled to receive under the Arrangement; and
(iv) the Employee Transaction Trust shall deposit, or cause to be deposited, in accordance escrow with the provisions Depositary for the benefit of and to be held on behalf of the CRP Agreement.holders of Amalco Preferred Shares entitled to receive the Employee Cash Consideration pursuant to Section 3.1(m), an amount equal to the aggregate Employee Cash Consideration for each Amalco Preferred Shares that are to be cancelled pursuant to Section 3.1(m).6
(b) Upon the surrender to the Depositary for cancellation of a certificate (or where applicable, confirmation of book-entry only entries) which immediately prior to the Company Amalgamation Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d)or Company Bond Warrants, as applicable, together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Depositary shall deliver: 7
(i) with respect to a Company Employee Shareholder, book-entry only entries representing the PubCo Common Shares and PubCo Warrants that such Company Employee Shareholder represented is entitled to and payment by cheque or wire transfer representing such Company Employee Shareholders pro rata entitlement to the Employee Cash Consideration; 4 NTD: To be determined prior to closing whether the cash for the Performance Warrants will be distributed by the Company or the Depositary. 5 NTD: To be determined prior to closing whether the Pubco Warrants to be distributed to Performance Warrantholders will be distributed by the Company or the Depositary 6 NTD: To be determined prior to closing whether the Depositary or the Company will handle this payment. 7 NTD: To be determined prior to closing whether any language related to Performance Warrants will be included in the language in this section in the Arrangement.
(ii) with respect to a Company Founder, book-entry only entries representing the PubCo Common Shares and PubCo Warrants that such Company Founder is entitled to and payment by cheque or wire transfer representing such Company Founder’s pro rata entitlement to the Founders Dividend Amount; and
(iii) with respect to a holder of Company Bond Warrants, book-entry only entries representing the PubCo Common Shares and PubCo Warrants that such holder of Company Bond Warrants is entitled to and payment by cheque or wire transfer representing the Aggregate Equity Value per Share less the Bond Warrant Exercise Price for each such Company Bond Warrant held by such surrendered certificate shall holder that is to be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received cancelled pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same3.1(f).
(c) Until surrendered as contemplated by this Section 5.1Article 5, each certificate that which immediately prior to the Effective Time represented outstanding Company Shares or Company Warrants shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender the Consideration to PubCo Common Shares, PubCo Performance Warrants, PubCo Warrants and/or cash payment which the such holder is entitled to receive in lieu of such certificate as contemplated in this pursuant to Section 5.1. 5.1(a)(i).
(d) Any such certificate formerly representing Company Shares or Company Warrants that is not duly surrendered deposited, together with all other documents required hereunder, on or before the sixth last Business Day before the third anniversary of the Effective Date shall cease to represent a Closing Date, and any right or claim by or interest of any kind or nature, including the right of a former Company Shareholder, Company Performance Warrantholder or holder of Company Shares Bond Warrants to receive certificates (or where applicable, confirmation of book-entry only entries) representing PubCo Common Shares, any kind portion of the Cash Consideration or nature against or in Parent, Purchaser or Company. On such date, all Consideration PubCo Performance Warrants to which such former holder was is entitled pursuant to the Arrangement, shall terminate and be deemed to be surrendered and forfeited to PubCo for no consideration and such forfeited PubCo Common Shares, such PubCo Common Shares shall be deemed to have been surrendered and forfeited to Purchaser.
(d) In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Shares that were transferred pursuant to Section 3.1(d) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration is to be delivered shall as a condition precedent to the delivery of such Share Consideration, give a bond satisfactory to Parent and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to have been lost, stolen or destroyedcancelled.
(e) Parent, PurchaserNo Company Shareholder, Company Performance Warrantholder or the Depositary holder of Company Bond Warrants shall be entitled to deduct and withhold from receive any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold consideration with respect to the Company Shares or the Company Warrants other than the consideration to which such payment holder is entitled to receive under the Tax ActArrangement and, the United States Internal Revenue Code of 1986for greater certainty, as amendedno such holder will be entitled to receive any interest, dividend, premium or other payment in connection therewith.
(f) All dividends payable with respect to any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person PubCo Common Share allotted and issued pursuant to this Plan of Arrangement as would for which a certificate has not been issued shall be necessary to produce sale proceeds (after deducting reasonable commissions payable paid or delivered to the broker Depositary to be held by the Depositary in trust for the registered holder thereof. The Depositary shall pay and deliver to any such registered holder, as soon as reasonably practicable after application therefor is made by the registered holder to the Depositary in such form as the Depositary may reasonably require, such dividends and any interest thereon to which such holder is entitled, net of applicable withholding and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kindtaxes.
(g) In no event shall any Person be entitled to a fractional PubCo Common Share. Where the aggregate number of PubCo Common Shares to be issued to a Person pursuant to the Plan of Arrangement would result in a fraction of a PubCo Common Share being issuable, the number of PubCo Common Shares to be received by such Person shall be rounded up or down to the nearest whole PubCo Common Share, with a fraction of 0.5 rounded up. No dividend or other distribution declared or cash settlements shall be made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid fractional shares eliminated by rounding. Cash payments made to any Person pursuant to the holder of any unsurrendered certificate that, immediately prior Arrangement will be rounded up to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Sharesnearest nearest cent.
Appears in 1 contract
Sources: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Certificates and Payments. (a) Following 4.1 Purchaser will, following receipt by Target of the Final Order and prior to the Effective Time, Parent shall deliver or arrange to be delivered to deposit in escrow with the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing Purchaser Shares to satisfy the Parent Shares required to be issued consideration issuable and/or payable to the Company Target Shareholders in accordance with Section 3.1(d) hereofpursuant to this Plan of Arrangement (other than Target Shareholders exercising Dissent Rights and who have not withdrawn their notice of objection).
4.2 After the Effective Date, certificates formerly representing Target Shares which Parent Share evidence shall be are held by a Target Shareholder will, except for Target Shares held by Dissenters, represent only the Depositary as agent and nominee for such former Company Shareholders for distribution right to such former Company Shareholders receive the consideration issuable and/or payable therefor pursuant to Section 3.1 in accordance with the provisions terms of Article 5 hereof. Following receipt this Plan of Arrangement.
4.3 No dividends or other distributions declared or made after the Final Order and Effective Date with respect to the Purchaser Shares with a record date after the Effective Date will be payable or paid to the holder of any unsurrendered certificate or certificates for Target Shares which, immediately prior to the Effective TimeDate, Purchaser shall deliver represented outstanding Target Shares and will not be payable or arrange paid until the surrender of certificates for Target Shares for exchange for the consideration issuable and/or payable therefor pursuant to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders 3.1 in accordance with the provisions terms of this Plan of Arrangement.
4.4 As soon as reasonably practicable after the Effective Date (subject to Section 6.2), the Depositary will forward to each Target Shareholder that submitted a duly completed Transmittal Letter to the Depositary, together with the certificate (if any) representing the Target Shares held by such Target Shareholder, the certificates representing the Purchaser Shares issued to such Target Shareholder pursuant to Section 31.(b), which shares will be registered in such name or names and either (i) delivered to the address or addresses as such Target Shareholder directed in their Transmittal Letter or (ii) made available for pick up at the offices of the CRP AgreementDepositary in accordance with the instructions of the Target Shareholder in the Transmittal Letter.
(b) Upon surrender 4.5 Target Shareholders that did not submit an effective Transmittal Letter prior to the Effective Date may take delivery of the consideration issuable or payable to them by delivering the certificates representing Target Shares or Target Shares formerly held by them to the Depositary at the offices indicated in the Transmittal Letter. Such certificates must be accompanied by a duly completed Transmittal Letter, together with such other documents as the Depositary may require. Certificates representing the Purchaser Shares issued to such Target Shareholder pursuant to Section 3.1 will be registered in such name or names and delivered to the address or addresses as such Target Shareholder directed in their Transmittal Letter or (ii) made available for cancellation pick up at the offices of a the Depositary in accordance with the instructions of the Target Shareholder in the Transmittal Letter, as soon as reasonably practicable after receipt by the Depositary of the required certificates and documents.
4.6 Any certificate which immediately prior to the Effective Time Date represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Target Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated surrendered, with all other instruments required by this Section 5.1Article 4, each certificate that immediately on or prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall Date, will cease to represent a any claim by against or interest of any former holder of Company Shares of any kind or nature against or in ParentTarget, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaserthe Depositary.
(d) 4.7 In the event any certificate certificate, which immediately prior to before the Effective Time represented one or more outstanding Company Shares Target Share that were transferred was exchanged pursuant to Section 3.1(d) shall have been 3.1, is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration consideration to which such Person is entitled in respect of the Target Shares represented by such lost, stolen, or destroyed certificate pursuant to Section 3.1 deliverable in accordance with such holder’s Letter of TransmittalPerson's Transmittal Letter. When authorizing such issuances or payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration consideration is to be delivered shall issued and/or paid will, as a condition precedent to the delivery of such Share Considerationissuance and/or payment thereof, give a bond satisfactory to Parent Purchaser and the Depositary (acting reasonably) its transfer agent in such sum as Parent Purchaser may direct, direct or otherwise indemnify Parent and Company Purchaser in a manner satisfactory to Parent and Company, acting reasonablyit, against any claim Claim that may be made against Parent, Purchaser and Company one or both of them with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Certificates and Payments. (a) Following receipt of the Final Order and prior 5.1 Prior to the Effective Time, Parent shall deliver Buyer will deposit or arrange cause to be delivered to deposited with the Depositary Exchange Agent, for the Share Consideration (together with cash in lieu benefit of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required and to be issued to the held on behalf of Company Shareholders entitled to receive the Exchange Consideration in accordance with Section 3.1(d) hereof3.1(a)(i), which Parent Share evidence shall be held by of the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders Exchange Consideration in accordance the book-entry form.
5.2 Following the deposit with the provisions of Article 5 hereof. Following receipt Exchange Agent of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders Exchange Consideration in accordance with Section 3.1(d5.1, Buyer will be fully and completely discharged from its obligation to pay the Exchange Consideration to Company Shareholders pursuant to Section 3.1(a)(i), and the rights of such holders will be limited to receiving, from the Exchange Agent, the Buyer Ordinary Shares (in the form of Buyer ADSs) to which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders they are entitled in accordance with the provisions this Plan of the CRP Agreement.
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to Arrangement. After the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such until surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered cancellation as contemplated by this Section 5.1Article 5, each certificate that immediately prior to the Effective Time represented one or more Company Shares shall be deemed after the Effective Time at all times to represent only the right to receive upon such surrender in exchange therefor the Exchange Consideration to which in book-entry form, that the holder of such certificate is entitled to receive in lieu accordance with Section 3.1(a)(i).
5.3 Until such time as a Company Shareholder deposits with the Exchange Agent a duly completed Letter of Transmittal, and such certificate documents, certificates and instruments contemplated by the Letter of Transmittal, and such other documents and instruments as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on the Exchange Agent or before Buyer reasonably requires, the sixth anniversary of the Effective Date shall cease to represent a claim by payment or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Consideration delivery to which such former holder was Company Shareholder is entitled shall will, in each case, be deemed delivered or paid to have been surrendered the Exchange Agent to be held as agent on behalf of and forfeited for the benefit of such Company Shareholder for delivery to Purchasersuch Company Shareholder, without interest and subject to any withholding described in Section 6.2, if any, upon delivery of the Letter of Transmittal, and such documents, certificates and instruments contemplated by the Letter of Transmittal, and such other documents, certificates and instruments as the Exchange Agent or Buyer reasonably requires.
5.4 Upon surrender to the Exchange Agent for cancellation of a certificate (dor affidavit of loss in lieu thereof in the form required by Buyer and the Exchange Agent) In the event any certificate which that immediately prior to the Effective Time represented one or more outstanding Company Shares, or in the case of Company Shares that were transferred pursuant to Section 3.1(d) shall have been lostheld in the book-entry form, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s a properly completed and duly executed Letter of Transmittal. When authorizing , and such payment in exchange for any lostadditional documents, stolen or destroyed certificatecertificates and instruments as the Buyer, Company and the Exchange Agent may reasonably require, the Person holder of such surrendered certificate (or affidavit of loss in lieu thereof), or the deliverer of such Letter of Transmittal, as applicable, will be entitled to whom receive, and the Exchange Agent will, as promptly as practicable after the Effective Time, deliver to such Share holder, evidence of the Exchange Consideration, in book entry form, to which such holder is entitled under the Arrangement, and any certificate so surrendered will forthwith be cancelled.
5.5 If any portion of the Exchange Consideration is to be delivered issued to a Person other than Company Shareholder in whose name the surrendered certificate or the transferred Company Share in book-entry form is registered, it shall be a condition to the issuance of the applicable portion of the Exchange Consideration that (i) either such certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Company Share in book-entry form shall be properly transferred and (ii) the Person requesting such consideration pay to the Exchange Agent any transfer Taxes required as a condition precedent result of such consideration being issued to a Person other than the registered holder of such certificate or Company Share in book-entry form or establish to the delivery satisfaction of the Exchange Agent that such Share Consideration, give a bond satisfactory to Parent and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to transfer Taxes have been lost, stolen paid or destroyedare not payable.
5.6 Any portion of the aggregate Exchange Consideration that remains unclaimed by Company Shareholders six (e6) Parent, Purchaser, Company or years following the Depositary Effective Time shall be entitled delivered to deduct Buyer or as otherwise instructed by Buyer, and withhold from any amount payable right or claim to any Person payment under the Plan of Arrangement, such amounts as Parent, Purchaser, Company Arrangement that remains outstanding six (6) years following the Effective Date shall cease to represent a right or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision claim of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company kind or the Depositary shall also have nature and the right of Company Shareholders to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to receive the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect portion of the transfer of aggregate Exchange Consideration in accordance with the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall terminate and be free deemed to be surrendered and clear of any Liens or other claims of third parties of any kindforfeited to Buyer, for no consideration.
5.7 In no event will any Person be entitled to a fractional Buyer Ordinary Share (gas represented by Buyer ADSs) or a fractional interest in a Buyer ADS. Where the aggregate number of Buyer Ordinary Shares (or Buyer ADSs) to be issued to a Person pursuant to or as contemplated in this Plan of Arrangement, including upon exercise of Replacement Options and Company Warrants, would result in a fraction of a Buyer Ordinary Shares or Buyer ADS being issuable, the number of Buyer Ordinary Shares or Buyer ADSs to be received by such Person will be rounded down to the nearest whole number, without any compensation therefor.
5.8 No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares the Exchange Consideration with a record date after the Effective Time shall be paid delivered to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1Article 5. Subject to applicable Law law and to this Section 5.16.2, at the time of such compliance, there shall, in addition to the delivery of evidence of the portion of the Exchange Consideration to which such holder is thereby entitledentitled under the Arrangement, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent SharesExchange Consideration.
Appears in 1 contract
Certificates and Payments.
4.1 EATS will deposit the EATS Shares with the Depositary to satisfy the consideration issuable and/or payable to the Mylk Shareholders pursuant to this Plan of Arrangement (a) Following receipt other than registered Mylk Shareholders validly exercising Dissent Rights and who have not withdrawn their notice of objection).
4.2 After the Final Order and Effective Date, certificates formerly representing Mylk Shares which are held by a Mylk Shareholder will, except for Mylk Shares held by Dissenters, represent only the right to receive the consideration issuable and/or payable therefor pursuant to Section 3.1 in accordance with the terms of this Plan of Arrangement.
4.3 No dividends or other distributions declared or made after the Effective Date with respect to the EATS Shares with a record date after the Effective Date will be payable or paid to the holder of any unsurrendered certificate or certificates for Mylk Shares which, immediately prior to the Effective TimeDate, Parent shall deliver represented outstanding Mylk Shares and will not be payable or arrange paid until the surrender of certificates for Mylk Shares for exchange for the consideration issuable and/or payable therefor pursuant to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders 3.1 in accordance with the provisions terms of Article 5 hereof. Following receipt this Plan of the Final Order and prior to Arrangement.
4.4 As soon as reasonably practicable after the Effective TimeDate (subject to Section 6.2), Purchaser shall deliver the Depositary will forward to each Mylk Shareholder the certificates representing the EATS Shares issued to such Mylk Shareholder pursuant to Section 3.1(b), which shares will be registered in such name or arrange to be names and delivered to the Escrow Agent address or addresses of such Mylk Shareholder as reflected in the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions record books of the CRP AgreementMylk.
(b) Upon surrender to the Depositary for cancellation of a 4.5 Any certificate which immediately prior to the Effective Time Date represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Mylk Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated surrendered, with all other instruments required by this Section 5.1Article 4, each certificate that immediately on or prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall Date, will cease to represent a any claim by against or interest of any former holder of Company Shares of any kind or nature against in Mylk, EATS or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaserthe Depositary.
(d) 4.6 In the event any certificate certificate, which immediately prior to before the Effective Time represented one or more outstanding Company Mylk Shares that were transferred was exchanged pursuant to Section 3.1(d) shall have been 3.1, is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable consideration to which such Person is entitled in accordance with respect of the Mylk Shares represented by such holder’s Letter of Transmittallost, stolen, or destroyed certificate pursuant to Section 3.1. When authorizing such issuances or payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration consideration is to be delivered shall issued and/or paid will, as a condition precedent to the delivery of such Share Considerationissuance and/or payment thereof, give a bond satisfactory to Parent EATS and the Depositary (acting reasonably) its transfer agent in such sum as Parent EATS may direct, direct or otherwise indemnify Parent and Company EATS in a manner satisfactory to Parent and Company, acting reasonablyit, against any claim Claim that may be made against Parent, Purchaser and Company one or both of them with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Sources: Arrangement Agreement
Certificates and Payments. (a) Following receipt of the Final Order and prior to the Effective Time, Parent shall deliver or arrange to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of Article 5 hereof. Following receipt of the Final Order and prior to the Effective Time, Purchaser shall deliver or arrange to be delivered to the Escrow Agent the aggregate CRP required to be paid to the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders in accordance with the provisions of the CRP Agreement.
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated by this Section 5.1, each certificate that immediately prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaser.
(d) In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Shares that were transferred pursuant to Section 3.1(d) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver in exchange for such lost, stolen or destroyed certificate, the Share Consideration deliverable in accordance with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration is to be delivered shall as a condition precedent to the delivery of such Share Consideration, give a bond satisfactory to Parent and the Depositary (acting reasonably) in such sum as Parent may direct, or otherwise indemnify Parent and Company in a manner satisfactory to Parent and Company, acting reasonably, against any claim that may be made against Parent, Purchaser and Company with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
Appears in 1 contract
Certificates and Payments. 5.1 Great Panther will deposit the Great Panther Shares with the Depositary to satisfy the consideration issuable and/or payable to the Cangold Shareholders pursuant to this Plan of Arrangement (a) Following receipt other than registered Cangold Shareholders validly exercising Dissent Rights and who have not withdrawn their notice of objection).
5.2 After the Final Order and Effective Date, certificates formerly representing Cangold Shares which are held by a Cangold Shareholder will, except for Cangold Shares held by Dissenters, represent only the right to receive the consideration issuable and/or payable therefor pursuant to Section 3.1 in accordance with the terms of this Plan of Arrangement.
5.3 No dividends or other distributions declared or made after the Effective Date with respect to the Great Panther Shares with a record date after the Effective Date will be payable or paid to the holder of any unsurrendered certificate or certificates for Cangold Shares which, immediately prior to the Effective TimeDate, Parent shall deliver represented outstanding Cangold Shares and will not be payable or arrange paid until the surrender of certificates for Cangold Shares for exchange for the consideration issuable and/or payable therefor pursuant to be delivered to the Depositary the Share Consideration (together with cash in lieu of fractional Parent Shares), including certificates or Direct Registration System Advices representing the Parent Shares required to be issued to the Company Shareholders in accordance with Section 3.1(d) hereof, which Parent Share evidence shall be held by the Depositary as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders 3.1 in accordance with the provisions terms of Article 5 hereof. Following receipt this Plan of Arrangement.
5.4 As soon as reasonably practicable after the Effective Date (subject to Section 7.2), the Depositary will forward to each Cangold Shareholder that submitted a duly completed Transmittal Letter to the Depositary, together with the certificate (if any) representing the Cangold Shares held by such Cangold Shareholder, the certificates representing the Great Panther Shares issued to such Cangold Shareholder pursuant to Section 3.1(b), which shares will be registered in such name or names and either (i) delivered to the address or addresses as such Cangold Shareholder directed in their Transmittal Letter or (ii) made available for pick up at the offices of the Final Order and Depositary in accordance with the instructions of the Cangold Shareholder in the Transmittal Letter.
5.5 Cangold Shareholders that did not submit an effective Transmittal Letter prior to the Effective TimeDate may take delivery of the consideration issuable or payable to them by delivering the certificates representing Cangold Shares formerly held by them to the Depositary at the offices indicated in the Transmittal Letter. Such certificates must be accompanied by a duly completed Transmittal Letter, Purchaser shall deliver together with such other documents as the Depositary may require. Certificates representing the Great Panther Shares issued to such Cangold Shareholder pursuant to Section 3.1 will be registered in such name or arrange to be names and delivered to the Escrow Agent address or addresses as such Cangold Shareholder directed in their Transmittal Letter or (ii) made available for pick up at the aggregate CRP required to be paid to offices of the Company Shareholders in accordance with Section 3.1(d), which CRP shall be held by the Escrow Agent as agent and nominee for such former Company Shareholders for distribution to such former Company Shareholders Depositary in accordance with the provisions instructions of the CRP AgreementCangold Shareholder in the Transmittal Letter, as soon as reasonably practicable after receipt by the Depositary of the required certificates and documents.
(b) Upon surrender to the Depositary for cancellation of a 5.6 Any certificate which immediately prior to the Effective Time Date represented outstanding Company Shares that were transferred pursuant to Section 3.1(d), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Company Shareholder represented by such surrendered certificate shall be entitled to receive in exchange therefor the Consideration, and the Depositary shall deliver to such Company Shareholder the Share Consideration, which such Company Shareholder has the right to receive under the Arrangement for such Company Cangold Shares and any certificate so surrendered shall forthwith be cancelled. Notwithstanding the foregoing, a Company RSU Holder, in his, her or its capacity as such, shall not be obligated to deposit certificates representing the underlying Company Shares (including those received pursuant to Section 3.1(c)) in order to receive the Consideration which such Company RSU Holder has the right to receive under the Arrangement for such Company Shares if certificates representing such Company Shares have not been issued (and the Letter of Transmittal shall provide for same).
(c) Until surrendered as contemplated surrendered, with all other instruments required by this Section 5.1Article 4, each certificate that immediately on or prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration to which the holder is entitled to receive in lieu of such certificate as contemplated in this Section 5.1. Any such certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall Date, will cease to represent a any claim by against or interest of any former holder of Company Shares of any kind or nature against in Cangold, Great Panther or in Parent, Purchaser or Company. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered and forfeited to Purchaserthe Depositary.
(d) 5.7 In the event any certificate certificate, which immediately prior to before the Effective Time represented one or more outstanding Company Cangold Shares that were transferred was exchanged pursuant to Section 3.1(d) shall have been 3.1, is lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will deliver issue in exchange for such lost, stolen or destroyed certificate, the Share Consideration consideration to which such Person is entitled in respect of the Cangold Shares represented by such lost, stolen, or destroyed certificate pursuant to Section 3.1 deliverable in accordance with such holderPerson’s Letter of TransmittalTransmittal Letter. When authorizing such issuances or payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such Share Consideration consideration is to be delivered shall issued and/or paid will, as a condition precedent to the delivery of such Share Considerationissuance and/or payment thereof, give a bond satisfactory to Parent Great Panther and the Depositary (acting reasonably) its transfer agent in such sum as Parent Great Panther may direct, direct or otherwise indemnify Parent and Company Great Panther in a manner satisfactory to Parent and Company, acting reasonablyit, against any claim Claim that may be made against Parent, Purchaser and Company one or both of them with respect to the certificate alleged to have been lost, stolen or destroyed.
(e) Parent, Purchaser, Company or the Depositary shall be entitled to deduct and withhold from any amount payable to any Person under the Plan of Arrangement, such amounts as Parent, Purchaser, Company or the Depositary are required to deduct and withhold with respect to such payment under the Tax Act, the United States Internal Revenue Code of 1986, as amended, or any provision of any other Law (a "Withholding Obligation"). To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such withholding was made, provided that such amounts are actually remitted to the appropriate taxing authority. Parent, Purchaser, Company or the Depositary shall also have the right to withhold such number of Parent Shares otherwise issuable to such Person pursuant to this Plan of Arrangement as would be necessary to produce sale proceeds (after deducting reasonable commissions payable to the broker and other reasonable costs and expenses) sufficient to fund any Withholding Obligation in respect of such Person; provided that no sales of any such Parent Shares shall occur in the United States or any other jurisdiction in which such sales are not permitted under applicable Law. For the avoidance of doubt, withholding in respect of the transfer of the CRP into escrow and any payments made pursuant to the CRP Agreement shall be governed exclusively by the CRP Agreement.
(f) Any exchange or transfer of Company Shares pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
(g) No dividend or other distribution declared or made after the Effective Time with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate that, immediately prior to the Effective Time, represented outstanding Company Shares unless and until the holder of such certificate shall have complied with the provisions of this Section 5.1. Subject to applicable Law and to this Section 5.1, at the time of such compliance, there shall, in addition to the delivery of Consideration to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofore paid with respect to such Parent Shares.
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