Holdco Alternative. (a) The Purchaser will permit persons (“Qualifying Holdco Shareholders”) that, (A) are resident in Canada for purposes of the Tax Act (including a partnership if all of the members of the partnership are resident in Canada); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Corporation Shares as of the date that is 10 Business Days after the date of mailing of the Circular; and (D) elect in respect of such Corporation Shares, by notice in writing provided to the Purchaser (or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 15 Business Days after the date of mailing of the Circular (the “Holdco Election Date”), to sell all of the issued shares of a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser (the “Holdco Alternative”), provided that: (i) such Qualifying Holdco was incorporated under the OBCA not earlier than the date of this Agreement, unless written consent is obtained from the Purchaser; (ii) such Qualifying Holdco is a single purpose corporation that has not carried on any business, has no employees, has not held or does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction other than those relating to and necessary for the ownership of the Corporation Shares or, with the Purchaser’s consent, such other transactions as are necessary to facilitate those transactions described in the Plan of Arrangement; (iii) at the time of the acquisition of Qualifying Holdco Shares by the Purchaser, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever (except to the Purchaser under the terms of the Holdco Alternative); (iv) except as provided by the Plan of Arrangement, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, prior to the Effective Time, such Qualifying Holdco shall not have paid any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time; (v) such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed to the Purchaser by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of such Qualifying Holdco; (vi) at all times such Qualifying Holdco shall be a resident of Canada for the purposes of the Tax Act and shall not be a resident of, and shall have no taxable presence in, any other country; (vii) such Qualifying Holdco shall have not more than three directors and three officers; (viii) the Qualifying Holdco Shareholder shall at its cost and in a timely manner prepare and file all income Tax Returns of such Qualifying Holdco in respect of all taxation years of such Qualifying Holdco ending prior to the acquisition of such Qualifying Holdco Shares by the Purchaser, subject to the Purchaser’s right to approve all such Tax Returns as to form and substance; (ix) the Qualifying Holdco Shareholder shall indemnify the Purchaser and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaser, acting reasonably; (x) the Qualifying Holdco Shareholder will provide the Purchaser with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after the date of the mailing of the Circular, the completion of which will comply with applicable Laws (including Securities Laws) at or prior to the Effective Time; (xi) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement; (xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the date that is 20 Business Days after the date of the mailing of the Circular and the Purchaser and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco; (xiii) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser and the Corporation, acting reasonably, and must include representations and warranties which are satisfactory to the Purchaser and the Corporation, each acting reasonably; (xiv) the Qualifying Holdco Shareholder shall waive its dissent rights; (xv) the Qualifying Holdco Shareholder will be required to pay all reasonable out-of-pocket expenses incurred by the Purchaser or the Corporation in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by the Purchaser or the Corporation; and (xvi) the Qualifying Holdco Shareholder and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the Purchaser. (b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation of all transactions involved in such Holdco Alternative. In the event that the terms and conditions of or the transactions involved in such Holdco Alternative are not satisfactory to the Purchaser, acting reasonably, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereof. (c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco Agreements”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative. (d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described in this Section 2.10.
Appears in 2 contracts
Sources: Arrangement Agreement (Brookfield Residential Properties Inc.), Arrangement Agreement (Brookfield Asset Management Inc.)
Holdco Alternative. (a) The Purchaser New Gold will permit persons (“Qualifying Holdco Shareholders”) that, who are (Aa) are resident in Canada for purposes of the Tax Act (including a partnership if all of the members of the partnership are resident in Canada); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Corporation Shares as of the date that is 10 Business Days after the date of mailing of the Circular; , and (Db) shareholders of a corporation that meets the conditions described below in this section (a “Qualifying Holdco”) to elect in respect of all of the Western Common Shares held by such Corporation SharesQualifying Holdco, by notice in writing provided to the Purchaser New Gold (or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 15 12th Business Days after Day prior to the date of mailing of the Circular Effective Date (the “Holdco Election Date”), to sell all of the issued shares of such Western Common Shares through a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser Holdco (the “Holdco Alternative”), ) provided that:
(i) such Qualifying Holdco was incorporated under the OBCA, CBCA or the laws of any province in Canada that permit a corporation incorporated thereunder to be continued under the OBCA not earlier other than the date of this Agreement, unless written consent is obtained from the Purchasera company treated as a disregarded entity under Treasury Regulation Section 301.7701-3;
(ii) at any time during the five-year period ending on the Effective Date such Qualifying Holdco is a single purpose corporation that has not carried on any businessand the Qualifying Holdco Shareholder(s) will have directly, has no employeesindirectly, has not held or does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction other than those relating to and necessary for the ownership constructively owned at least five percent (5%) of the Corporation Western Common Shares or, with as determined under section 318(a) of the Purchaser’s consent, such other transactions as are necessary to facilitate those transactions described in the Plan of ArrangementCode;
(iii) at the time of the acquisition of Effective Time, such Qualifying Holdco Shares by is a corporation that has no employees, and has no property or assets other than Western Common Shares, a nominal amount of cash (or such greater amount of cash required pursuant to paragraph (iv) below), refundable Tax and such other immaterial assets acceptable to New Gold;
(iv) at the PurchaserEffective Time, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever (except to the Purchaser New Gold and Western under the terms of this Agreement, the Arrangement and the Holdco Alternative);
(iv) except as provided Agreement, or to the extent that sufficient cash net of any refundable Taxes is retained by the Plan of Arrangement, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends andto satisfy any liabilities or security satisfactory to New Gold is provided by, prior to the Effective Time, such Qualifying Holdco shall not have paid any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective TimeShareholder(s));
(v) such Qualifying Holdco shall have has no shares or other securities outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed of to the Purchaser New Gold by the Qualifying Holdco ShareholderShareholder(s), who shall be the sole registered and beneficial owner of such shares shares, free and clear of all LiensEncumbrances, and no other person shall have has any optionoptions, warrant warrants or other right rights to acquire any securities of such Qualifying HoldcoHoldco other than pursuant to this Agreement, the Holdco Agreement and the Arrangement;
(vi) at all times such Qualifying Holdco shall be is a resident of Canada and a “taxable Canadian corporation” for the purposes of the Tax Act and shall is not a resident, or deemed to be a resident offor tax purposes, and shall have no taxable presence in, of the United States or any other country, is not taxable in the U.S. as a domestic corporation (under section 7874 or any other provision of the Code), and has not made an election under section 897(i) of the Code to be treated as a domestic corporation;
(vii) such Qualifying the Holdco shall have not more than three directors and three officers;
(viii) the Qualifying Holdco Shareholder shall at its cost and Alternative will be completed in a timely manner prepare and file all income Tax Returns of such Qualifying Holdco in respect of all taxation years of such Qualifying Holdco ending prior to the acquisition of such Qualifying Holdco Shares by the Purchaser, subject to the Purchaser’s right to approve all such Tax Returns as to form and substance;
(ix) the Qualifying Holdco Shareholder shall indemnify the Purchaser and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaser, acting reasonably;
(x) the Qualifying Holdco Shareholder will provide the Purchaser with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after the date of the mailing of the Circular, the completion of which will comply accordance with applicable Laws (including Securities securities Laws) at or prior to the Effective Time;
(xiviii) the Qualifying Holdco Shareholder(s) will be required to provide a comprehensive indemnity in favour of New Gold, Western and Qualifying Holdcos, on terms satisfactory to New Gold, acting reasonably, in respect of (A) any liabilities of such Qualifying Holdco relating to any matter before the Effective Time (other than any Tax payable pursuant to FIRPTA as a result of any transaction, event or circumstance occurring on or after the Effective Time), and (B) any breach by the Qualifying Holdco Shareholder(s) of any representation, warranty, obligation or covenant of the Qualifying Holdco Shareholder(s) or the Qualifying Holdco to New Gold and Western. For greater certainty, the term “liabilities” for purposes of this paragraph (viii) shall include any and all claims, demands, proceedings, losses, damages, liabilities, deficiencies, costs and expenses (including legal and other professional fees), interest, penalties and Taxes suffered or incurred by New Gold, Western and such Qualifying Holdco, as applicable (other than Tax under FIRPTA, as described above);
(ix) the entering into or implementation of the Holdco Alternative will not result in any delay in completing the Arrangement or any other transaction contemplated by this Agreement;
(x) on or before the Effective Date, the Qualifying Holdco Shareholder(s) shall have filed all Tax returns and paid all Taxes in respect of any taxation year ending at least three months prior to the Effective Date, and shall at its cost and in a timely manner prepare all income tax and other Tax returns of such Qualifying Holdco in respect of the taxation year ending immediately prior to the acquisition of its shares by New Gold, and any other taxation year ending prior to the Effective Time (if any, not yet filed), and New Gold shall cause the execution and filing of such tax returns within the prescribed time period;
(xi) the Qualifying Holdco Shareholder(s) will be required to pay all of the reasonable out-of-pocket expenses incurred by New Gold, such Qualifying Holdco and Western in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by New Gold;
(xii) access financial statements and tax returns for the most recent fiscal year ending at least three months prior to the Effective Time, and any other financial statements, tax returns and books and records reasonably requested by New Gold, in respect of such Qualifying Holdco shall have been provided on or before the date that is 20 10 Business Days after prior to the date of the mailing of the Circular Effective Time, and the Purchaser New Gold and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco;; and
(xiii) such Qualifying Holdco shall have delivered to New Gold, at least three Business Days prior to the terms Effective Date, copies of its articles, by-laws and conditions a resolution of its directors authorizing the transfer of its shares, certified by an officer of such Qualifying Holdco Alternative and the Holdco Agreements (as defined below) must be and, if requested by New Gold, a corporate legal opinion in form reasonably satisfactory to the Purchaser and the Corporation, acting reasonably, and must include representations and warranties which are satisfactory to the Purchaser and the Corporation, each acting reasonably;
(xiv) the Qualifying Holdco Shareholder shall waive its dissent rights;
(xv) the Qualifying Holdco Shareholder will be required to pay all reasonable out-of-pocket expenses incurred by the Purchaser or the Corporation in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by the Purchaser or the Corporation; and
(xvi) the Qualifying Holdco Shareholder and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the PurchaserNew Gold.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation Qualifying Holdco Shareholders will take such steps as are necessary to obtain the full benefit of all transactions involved refundable Taxes and any other Tax accounts in Qualifying Holdco, provided such Holdco Alternative. In the event that the terms and conditions of or the transactions involved in such Holdco Alternative are steps do not satisfactory to the Purchaser, acting reasonably, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereofcreate adverse consequences for New Gold.
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco AgreementsAgreement”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. , which shall include representations and warranties satisfactory to New Gold, acting reasonably, and shall terminate if the Arrangement is not completed in accordance with this Agreement and the Plan of Arrangement.
(d) Each Qualifying Holdco Shareholder shall receive in exchange for the shares of the Qualifying Holdco the same Share Consideration that its Qualified Holdco would have been entitled to receive if the Western Common Shares held by such Qualifying Holdco had been acquired directly by New Gold.
(e) Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described in this Section 2.10.
Appears in 2 contracts
Sources: Business Combination Agreement (Western Goldfields Inc.), Business Combination Agreement (New Gold Inc. /FI)
Holdco Alternative. Each Shareholder shall be entitled to transfer its Shares to a newly-incorporated corporation (a "Holdco") and transfer the Holdco Shares to Canco as provided in Section 2.2(a) provided that each of the following conditions are satisfied on or prior to and as of the Effective Date:
(a) The Purchaser will permit persons the Shareholder is a resident of Canada for the purposes of the ITA;
(“Qualifying b) Holdco Shareholders”is incorporated no earlier than August 31, 2002, under the Act;
(c) thatthe Shareholder transfers its Shares to Holdco solely in consideration for the Holdco Shares;
(d) Holdco has no indebtedness or liabilities and owns no assets other than the Shares;
(e) the Shareholder indemnifies Acquiror, the Corporation, Canco and Callco for any and all liabilities of Holdco (A) are resident in Canada other than tax liabilities of Holdco that arise solely as a result of the tax status of Acquiror, Canco or Callco as a "financial institution" for purposes of the Tax Act (including ITA) in a partnership if all of the members of the partnership form satisfactory to Acquiror in its sole discretion, and such Shareholder either has net assets as reflected on its audited financial statements for its most recently ended fiscal year which are resident in Canada); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Corporation Shares as of the date that is 10 Business Days after the date of mailing of the Circular; and (D) elect satisfactory to Acquiror or provides Acquiror with security satisfactory to Acquiror in respect of such Corporation Shares, by notice in writing provided shareholder's indemnification obligations as set out above;
(f) prior to the Purchaser Effective Date, Holdco (i) declares one or more stock dividends which (if the DepositaryHoldco Shares are to be acquired by Canco) not later than 5:00 p.m. may be in the form of preferred shares of Holdco that are converted into common shares of Holdco prior to the Effective Date, (Toronto timeii) increases the stated capital of the Holdco Shares; or (iii) (if the Holdco Shares are to be acquired by Canco) declares one or more cash dividends, provided that such cash is used to subscribe, directly or indirectly, for shares of Holdco;
(g) on the date that is 15 Business Days after the date of mailing of the Circular (the “Effective Date, Holdco Election Date”), to sell all of the has no issued shares of a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser (the “Holdco Alternative”), provided that:
(i) such Qualifying Holdco was incorporated under the OBCA not earlier outstanding other than the date of this Agreement, unless written consent is obtained from Holdco Shares and such shares will be owned by the PurchaserShareholder;
(iih) such Qualifying on or prior to the Effective Date, Holdco is a single purpose corporation that has not carried on any business, has no employees, has not held or does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction (or conducted any business or operations or engaged in any activity) other than those relating to and necessary for the ownership of the Corporation Shares or, with the Purchaser’s consent, described herein or such other transactions as are necessary to facilitate those transactions described in the Plan of Arrangementherein with Acquiror's consent, acting reasonably;
(iiii) at the time of the acquisition of Qualifying Holdco Shares by the Purchaser, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever (except to the Purchaser under the terms of the Holdco Alternative);
(iv) except other than as provided by the Plan of Arrangementin (f) above, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, prior to the Effective Time, such Qualifying Holdco shall not have paid declare or pay any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time;
(v) such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed to the Purchaser by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of such Qualifying Holdco;
(vi) at all times such Qualifying Holdco shall be a resident of Canada for the purposes of the Tax Act and shall not be a resident of, and shall have no taxable presence in, any other country;
(vii) such Qualifying Holdco shall have not more than three directors and three officers;
(viiij) the Qualifying Holdco Shareholder shall at its cost and in a timely manner prepare and file all income Tax Returns tax returns of such Qualifying its Holdco in respect of all the taxation years year-end of such Qualifying Holdco ending immediately prior to the acquisition of such Qualifying Holdco Shares by the Purchaser, Canco subject to the Purchaser’s Acquiror's right to approve all such Tax Returns returns as to form and substance;
(ixk) the Qualifying Holdco Shareholder shall indemnify provides the Purchaser Corporation and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaser, acting reasonably;
(x) the Qualifying Holdco Shareholder will provide the Purchaser Acquiror with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after the date of the mailing of the Circular, the completion of which will comply with applicable Laws (including Securities Laws) in this Section 2.3 at or least ten days prior to the Effective Time;Date which documents must be approved by both the Corporation and Acquiror in their sole discretion; and
(xil) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the date that is 20 Business Days after the date of the mailing of the Circular and the Purchaser Shareholder and its counsel shall have completed their due diligence regarding Holdco execute a share purchase agreement in the business and affairs of such Qualifying Holdco;
(xiii) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser and the Corporationform required by Acquiror, acting reasonably, and must include representations and warranties which are satisfactory to providing for, among other things, the Purchaser and the Corporation, each acting reasonably;
(xiv) the Qualifying Holdco Shareholder shall waive its dissent rights;
(xv) the Qualifying Holdco Shareholder will be required to pay all reasonable out-of-pocket expenses incurred by the Purchaser or the Corporation in connection with sale of the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by the Purchaser or the Corporation; and
(xvi) the Qualifying Holdco Shareholder Shares to Canco and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the Purchaser.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation of all transactions involved in such Holdco Alternative. In the event that containing the terms and conditions of or the transactions involved in such Holdco Alternative are not satisfactory to the Purchaserconditions, acting reasonablyamong others, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereof.
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco Agreements”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described set out in this Section 2.102.3.
Appears in 2 contracts
Sources: Arrangement Agreement (Nabors Industries LTD), Arrangement Agreement (Nabors Industries LTD)
Holdco Alternative. (a) The Purchaser Subject to receipt of all required regulatory approvals, Acquisitionco will permit persons (“Qualifying Holdco Shareholders”) that, who (Ai) are resident in Canada for purposes of the Tax Act Act, (including a partnership if all of the members of the partnership are resident in Canada); (Bii) are not exempt from tax under Part I of the Tax Act; , and (Ciii) are registered owners of Corporation the Company Shares as of the date that is 10 Business Days after the date of mailing of the Circular; and (D) elect in respect of such Corporation Company Shares, by notice in writing provided to the Purchaser Acquisitionco (or the Depositary) not no later than 5:00 p.m. (Toronto Montreal time) on the date that is 15 15th Business Days after Day prior to the date of mailing of the Circular Effective Date (the “Holdco Election Date”), ) to sell all of the issued shares of a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser ” (the “Holdco Alternative”), ) provided that:
(i) such Qualifying Holdco was is an unlimited liability company incorporated under the OBCA not earlier than Companies Act (Nova Scotia) after the date hereof and is a wholly-owned disregarded entity of this Agreement, unless written consent such shareholder for US federal income tax purposes within the meaning of Treasury Regulation section 301.7701-2 and is obtained from the Purchasernot a partnership for U.S. federal income tax purposes;
(ii) such Qualifying Holdco is a single purpose corporation Company that has not carried on any business, has no never had any employees, has not held or does not hold have any assets right or interest in any property of any kind whatsoever other than Corporation Shares and a nominal amount of cashthe Company Shares, has never entered into any transaction other than those relating to and necessary for the ownership of the Corporation Company Shares or, or with the PurchaserAcquisitionco’s consent, consent such other transactions as are necessary to facilitate those transactions described in the Plan of Arrangement;
(iii) at the time of the acquisition of Qualifying Holdco Shares by the PurchaserEffective Time, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever (except to the Purchaser under the terms of the Holdco Alternative)whatever;
(iv) except as provided by the Plan of Arrangement, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, prior or other distributions (other than any dividend that is to the Effective Time, be paid by such Qualifying Holdco shall not have paid any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as pursuant to the Plan of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount Arrangement) and any such promissory note issued in relation to the payment of any such a dividend shall no longer be outstanding as of the Effective Time;
(v) such Qualifying Holdco shall have no shares outstanding other than the common shares (the “Qualifying Holdco Shares”) being disposed of to the Purchaser Acquisitionco by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of such Qualifying Holdcoshares;
(vi) at all times such Qualifying Holdco shall be a resident of Canada and a “taxable Canadian corporation” for the purposes of the Tax Act and shall not be a resident of, of any other country and shall have no taxable presence in, in any other country;
(vii) such Qualifying Holdco shall have not more than three directors and three officers;
(viii) the Qualifying Holdco Shareholder shall at its cost and in a timely manner prepare and file all income Tax Returns tax returns of such Qualifying Holdco in respect of all the taxation years year of such Qualifying Holdco ending immediately prior to the acquisition of such Qualifying Holdco Shares by the PurchaserAcquisitionco, subject to the PurchaserAcquisitionco’s right to approve all such Tax Returns tax returns as to form and substance;
(ix) the Qualifying Holdco Shareholder shall indemnify the Purchaser and the CorporationAcquisitionco, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect (other than tax liabilities of any matter occurring prior to the acquisition of such Qualifying Holdco that arise as a result of the Qualifying Holdco disposing of the Shares by after the Purchaser Effective Date) in a form satisfactory to the Purchaser, acting reasonably;Acquisitionco in its sole discretion,
(x) the Qualifying Holdco Shareholder has net assets which are satisfactory to Acquisitionco or provides Acquisitionco with security satisfactory to Acquisitionco in respect of such Qualifying Holdco Shareholder’s indemnification obligations as set out in paragraph (ix) above;
(xi) each Qualifying Holdco Shareholder will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco Agreements”) containing representations and warranties and covenants acceptable to Acquisitionco, acting reasonably;
(xii) the Qualifying Holdco Shareholder will provide the Purchaser Acquisitionco with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after tenth business day preceding the date of the mailing of the CircularEffective Date, the completion of which will comply with applicable Laws (including Securities securities Laws) at or prior to the Effective Time;
(xixiii) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement;
(xiixiv) access to the books and records of such Qualifying Holdco shall have been provided to Acquisitionco on or before the date that is 20 tenth Business Days after Day prior to the date of the mailing of the Circular Effective Date and the Purchaser Acquisitionco and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco;
(xiiixv) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser Acquisitionco and the CorporationCompany, acting reasonably, and must include representations and warranties which are satisfactory to the Purchaser and the CorporationAcquisitionco, each acting reasonably;; and
(xivxvi) prior to the Qualifying Holdco Shareholder shall waive its dissent rights;
(xv) Effective Time the Qualifying Holdco Shareholder will be required to pay all reasonable out-of-pocket expenses incurred by the Purchaser or the Corporation Acquisitionco in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by the Purchaser Acquisitionco or the Corporation; and
(xvi) the Qualifying Holdco Shareholder and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the PurchaserCompany.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation Acquisitionco of all transactions involved in such Holdco Alternative. In the event that the terms and conditions of such Holdco Alternative or the any transactions involved in such the Holdco Alternative are not satisfactory to the PurchaserAcquisitionco, acting reasonably, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereof.
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, Holdco Agreements in the “Holdco Agreements”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco form required by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoingAcquisitionco, acting reasonably. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser Acquisitionco may in its sole discretion agree to waive any of the requirements for making a Qualifying Holdco Election described in this Section 2.102.12(a).
Appears in 2 contracts
Sources: Arrangement Agreement (Symmetry Holdings Inc), Arrangement Agreement (Symmetry Holdings Inc)
Holdco Alternative. Each Shareholder shall be entitled to transfer its Shares to a newly-incorporated corporation (a "Holdco") and transfer the Holdco Shares to Canco as provided in Section 2.2(a) provided that each of the following conditions are satisfied on or prior to and as of the Effective Date:
(a) The Purchaser will permit persons the Shareholder is a resident of Canada for the purposes of the ITA;
(“Qualifying b) Holdco Shareholders”is incorporated no earlier than February 24, 2002, under the Act;
(c) thatthe Shareholder transfers its Shares to Holdco solely in consideration for the Holdco Shares;
(d) Holdco has no indebtedness or liabilities and owns no assets other than the Shares;
(e) the Shareholder indemnifies Acquiror, the Corporation, Canco and Callco for any and all liabilities of Holdco (A) are resident in Canada other than tax liabilities of Holdco that arise solely as a result of the tax status of Acquiror, Canco or Callco as a "financial institution" for purposes of the Tax Act (including ITA) in a partnership if all of the members of the partnership form satisfactory to Acquiror in its sole discretion, and such Shareholder either has net assets as reflected on its audited financial statements for its most recently ended fiscal year which are resident in Canada); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Corporation Shares as of the date that is 10 Business Days after the date of mailing of the Circular; and (D) elect satisfactory to Acquiror or provides Acquiror with security satisfactory to Acquiror in respect of such Corporation Shares, by notice in writing provided shareholder's indemnification obligations as set out above;
(f) prior to the Purchaser Effective Date, Holdco (i) declares one or more stock dividends which (if the DepositaryHoldco Shares are to be acquired by Canco) not later than 5:00 p.m. may be in the form of preferred shares of Holdco that are converted into common shares of Holdco prior to the Effective Date, (Toronto timeii) increases the stated capital of the Holdco Shares; or (iii) (if the Holdco Shares are to be acquired by Canco) declares one or more cash dividends, provided that such cash is used to subscribe, directly or indirectly, for shares of Holdco;
(g) on the date that is 15 Business Days after the date of mailing of the Circular (the “Effective Date, Holdco Election Date”), to sell all of the has no issued shares of a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser (the “Holdco Alternative”), provided that:
(i) such Qualifying Holdco was incorporated under the OBCA not earlier outstanding other than the date of this Agreement, unless written consent is obtained from Holdco Shares and such shares will be owned by the PurchaserShareholder;
(iih) such Qualifying on or prior to the Effective Date, Holdco is a single purpose corporation that has not carried on any business, has no employees, has not held or does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction (or conducted any business or operations or engaged in any activity) other than those relating to and necessary for the ownership of the Corporation Shares or, with the Purchaser’s consent, described herein or such other transactions as are necessary to facilitate those transactions described in the Plan of Arrangementherein with Acquiror's consent, acting reasonably;
(iiii) at the time of the acquisition of Qualifying Holdco Shares by the Purchaser, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever (except to the Purchaser under the terms of the Holdco Alternative);
(iv) except other than as provided by the Plan of Arrangementin (f) above, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, prior to the Effective Time, such Qualifying Holdco shall not have paid declare or pay any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time;
(v) such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed to the Purchaser by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of such Qualifying Holdco;
(vi) at all times such Qualifying Holdco shall be a resident of Canada for the purposes of the Tax Act and shall not be a resident of, and shall have no taxable presence in, any other country;
(vii) such Qualifying Holdco shall have not more than three directors and three officers;
(viiij) the Qualifying Holdco Shareholder shall at its cost and in a timely manner prepare and file all income Tax Returns tax returns of such Qualifying its Holdco in respect of all the taxation years year-end of such Qualifying Holdco ending immediately prior to the acquisition of such Qualifying Holdco Shares by the Purchaser, Canco subject to the Purchaser’s Acquiror's right to approve all such Tax Returns returns as to form and substance;
(ixk) the Qualifying Holdco Shareholder shall indemnify provides the Purchaser Corporation and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaser, acting reasonably;
(x) the Qualifying Holdco Shareholder will provide the Purchaser Acquiror with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after the date of the mailing of the Circular, the completion of which will comply with applicable Laws (including Securities Laws) in this Section 2.3 at or least ten days prior to the Effective Time;Date which documents must be approved by both the Corporation and Acquiror in their sole discretion; and
(xil) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the date that is 20 Business Days after the date of the mailing of the Circular and the Purchaser Shareholder and its counsel shall have completed their due diligence regarding Holdco execute a share purchase agreement in the business and affairs of such Qualifying Holdco;
(xiii) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser and the Corporationform required by Acquiror, acting reasonably, and must include representations and warranties which are satisfactory to providing for, among other things, the Purchaser and the Corporation, each acting reasonably;
(xiv) the Qualifying Holdco Shareholder shall waive its dissent rights;
(xv) the Qualifying Holdco Shareholder will be required to pay all reasonable out-of-pocket expenses incurred by the Purchaser or the Corporation in connection with sale of the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by the Purchaser or the Corporation; and
(xvi) the Qualifying Holdco Shareholder Shares to Canco and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the Purchaser.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation of all transactions involved in such Holdco Alternative. In the event that containing the terms and conditions of or the transactions involved in such Holdco Alternative are not satisfactory to the Purchaserconditions, acting reasonablyamong others, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereof.
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco Agreements”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described set out in this Section 2.102.3.
Appears in 1 contract
Holdco Alternative. (a) The Purchaser will permit persons (“Qualifying Holdco Shareholders”) that, (A) are resident in Canada for purposes of the Tax Act (including 2.8.1 Persons who hold Boomerang Common Shares indirectly through a partnership if Holding Company may choose to have all of the members of the partnership are resident in Canada); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Corporation outstanding Holdco Shares as of the date that is 10 Business Days after the date of mailing of the Circular; and (D) elect in respect of such Corporation Shares, acquired by notice in writing provided LoJack Exchangeco pursuant to the Purchaser (or Plan of Arrangement in accordance with the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 15 Business Days after the date of mailing of the Circular (the “Holdco Election Date”), to sell all of the issued shares terms of a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser (the “Holdco Alternative”), Agreement; provided that:
that (i) such Qualifying Holdco was incorporated under the OBCA not earlier Persons provide a written request to that effect to LoJack no later than ten Business Days prior to the date of this Agreementthe Boomerang Meeting, unless written consent is obtained from the Purchaser;
(ii) such Qualifying Holdco is a single purpose corporation that has not carried on any business, has no employees, has not held or does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction other than those relating to and necessary for the ownership all of the Corporation Shares or, with the Purchaser’s consent, such other transactions as are necessary to facilitate those transactions described holders of shares in the Plan capital of Arrangement;
such Holding Company execute such Holdco Agreement, (iii) at the time all of the acquisition holders of Qualifying Holdco Shares by shares in the Purchaser, capital of such Qualifying Holdco has no liabilities or obligations of any kind whatsoever (except Holding Company duly complete and deposit with LoJack prior to the Purchaser under Election Deadline a Holdco Letter of Transmittal and Election Form, (iv) such other documents as Boomerang or LoJack may reasonably require pursuant to the terms of the such Holdco Alternative);
(iv) except as provided by the Plan of Arrangement, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, Agreement are delivered prior to the Effective Time, such Qualifying Holdco shall not have paid any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time;
(v) such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed to the Purchaser by the Qualifying Holdco ShareholderLoJack has concluded, who shall be the in its sole registered and beneficial owner of such shares free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of such Qualifying Holdco;
(vi) at all times such Qualifying Holdco shall be a resident of Canada for the purposes of the Tax Act and shall not be a resident of, and shall have no taxable presence in, any other country;
(vii) such Qualifying Holdco shall have not more than three directors and three officers;
(viii) the Qualifying Holdco Shareholder shall at its cost and in a timely manner prepare and file all income Tax Returns of such Qualifying Holdco in respect of all taxation years of such Qualifying Holdco ending prior to the acquisition of such Qualifying Holdco Shares by the Purchaser, subject to the Purchaser’s right to approve all such Tax Returns as to form and substance;
(ix) the Qualifying Holdco Shareholder shall indemnify the Purchaser and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaserdiscretion, acting reasonably;
(x) , that such entity has satisfied the Qualifying Holdco Shareholder will provide the Purchaser with copies definition of all documents necessary to effect the transactions contemplated herein a Holding Company on or before the date 8th Business Day prior to the Boomerang Meeting, it being acknowledged that the entity set out in the Boomerang Disclosure Letter so satisfies the definition provided that such entity complies with the Holdco Agreement.
2.8.2 LoJack hereby acknowledges and agrees that Boomerang shall determine the “safe income” (as that expression is 20 Business Days understood for purposes of the Income Tax Act (Canada)) for each taxation year ending after the date of its incorporation, as well as for the mailing of the Circular, the completion of which current stub period that will comply with applicable Laws (including Securities Laws) at or prior to the Effective Time;
(xi) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the date that is 20 Business Days after the date of the mailing of the Circular and the Purchaser and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco;
(xiii) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser and the Corporation, acting reasonably, and must include representations and warranties which are satisfactory to the Purchaser and the Corporation, each acting reasonably;
(xiv) the Qualifying Holdco Shareholder shall waive its dissent rights;
(xv) the Qualifying Holdco Shareholder will be required to pay all reasonable out-of-pocket expenses incurred by the Purchaser or the Corporation in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by the Purchaser or the Corporation; and
(xvi) the Qualifying Holdco Shareholder and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of end upon the acquisition of control of the Qualifying Holdco by the Purchaser.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required Boomerang, and shall make such information available to make full disclosure all holders of Holding Companies as well as all Boomerang shareholders. Prior to the Purchaser such determination being made available to shareholders of Holding Companies and Boomerang, such determination and the Corporation of all transactions involved in proposed correspondence with such Holdco Alternative. In the event that the terms and conditions of or the transactions involved in such Holdco Alternative are not satisfactory to the Purchaser, acting reasonably, no Holdco Alternative shareholders shall be offered made available to LoJack and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereofits reasonable comments thereon considered.
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco Agreements”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described in this Section 2.10.
Appears in 1 contract
Sources: Combination Agreement (Lojack Corp)
Holdco Alternative. (a) The Purchaser Subject to receipt of all required regulatory approvals, Acquireco will permit persons Persons (“Qualifying Holdco Shareholders”) thatwho are, (Aa) are resident in Canada for purposes of the Tax Act (including a partnership if all of the members of the partnership are resident in Canada); , and (Bb) are not exempt from tax under Part I of the Tax Act; (C) are registered and beneficial owners of Corporation Shares (directly or indirectly through a Qualifying Holdco) as of the date that is 10 Business Days after the date of mailing of the Circular; Effective Date, and (Dc) shareholders of a corporation that meets the conditions described below in this section 2.8 (a “Qualifying Holdco”) to elect in respect of such Corporation SharesShares (or Shares held by such Qualifying Holdco), by notice in writing provided to the Purchaser Acquireco (or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 15 10th Business Days after Day prior to the date of mailing of the Circular Effective Date (the “Holdco Election Date”), to sell all of the issued shares of such Shares through a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser Holdco (the “Holdco Alternative”), ) provided that:
(i) such Qualifying Holdco was incorporated under the OBCA CBCA not earlier than a date acceptable to Acquireco or will be continued under the date of this Agreement, unless written consent is obtained from the PurchaserCBCA;
(ii) such Qualifying Holdco is a single purpose corporation that has not carried on any business, has no employees, employees and has not held or and does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction other than those relating to and necessary for the ownership of the Corporation Shares or, with the Purchaser’s consent, such other transactions as are necessary to facilitate those transactions described in the Plan of Arrangement;
(iii) at the time of the acquisition of Qualifying Holdco Shares by the PurchaserEffective Time, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever whatever (except to Acquireco and the Purchaser Corporation under the terms of the Holdco AlternativeAlternative and the Voting Agreements);
(iv) except as provided by the Plan of Arrangement, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, prior to the Effective Time, such Qualifying Holdco shall not have paid any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time;
(v) such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed to the Purchaser by the Qualifying Holdco Shareholder, who shall be been the sole registered legal and beneficial owner of such shares free and clear of all LiensShares since February 15, and no other person shall have any option2007, warrant or other right to acquire any securities of such Qualifying Holdcolater date as Acquireco may determine in its sole discretion;
(viv) at all times such Qualifying Holdco shall be is a resident of Canada for the purposes of the Tax Act and shall is not be a resident of, of the United States and shall have has no taxable presence inin the United States;
(vi) all Qualifying Holdco Shareholders will be required to employ the same form of Holdco Alternative, any other countrywhich shall be a Holdco acquisition model;
(vii) such Qualifying Holdco shall have not more than three directors and three officers;
(viii) the Qualifying Holdco Shareholder shall at its cost and Alternative will be completed in a timely manner prepare and file all income Tax Returns of such Qualifying Holdco in respect of all taxation years of such Qualifying Holdco ending prior to the acquisition of such Qualifying Holdco Shares by the Purchaser, subject to the Purchaser’s right to approve all such Tax Returns as to form and substance;
(ix) the Qualifying Holdco Shareholder shall indemnify the Purchaser and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaser, acting reasonably;
(x) the Qualifying Holdco Shareholder will provide the Purchaser with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after the date of the mailing of the Circular, the completion of which will comply accordance with applicable Laws (including Securities securities Laws) at or prior to the Effective Time;
(xiviii) the Qualifying Holdco Shareholder and, if applicable, its shareholder and/or the ultimate principal investor of the Qualifying Holdco Shareholder will be required to provide a comprehensive indemnity in favour of Acquireco and the Corporation, on terms satisfactory to Acquireco, acting reasonably, in respect of (A) any liabilities of such Qualifying Holdco relating to any matter occurring on or before the Effective Time, and (B) any breach by the Qualifying Holdco Shareholder, and where applicable, its shareholder and/or the ultimate principal investor of the Qualifying Holdco Shareholder, of any representation, warranty, obligation or covenant of the Qualifying Holdco Shareholder, its shareholder and/or the ultimate principal investor of such Qualifying Holdco Shareholder, as the case may be, to Acquireco and the Corporation. For greater certainty, the term “liabilities” for purposes of this subsection (viii) shall include any and all claims, demands, proceedings, losses, damages, liabilities, deficiencies, costs and expenses (including legal and other professional fees), interest, penalties and Taxes suffered or incurred by Acquireco, the Corporation and such Qualifying Holdco, as applicable;
(ix) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the date that is 20 Business Days after the date of the mailing of the Circular and the Purchaser and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco;
(xiii) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser and the Corporation, acting reasonably, and must include representations and warranties which are satisfactory to the Purchaser and the Corporation, each acting reasonably;
(xiv) the Qualifying Holdco Shareholder shall waive its dissent rights;
(xvx) the Qualifying Holdco Shareholder will be required to pay all of the reasonable out-of-pocket expenses incurred by the Purchaser or Acquireco, such Qualifying Holdco and the Corporation in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by Acquireco;
(xi) access to the Purchaser books and records of such Qualifying Holdco shall have been provided on or before 15 Business Days prior to the CorporationEffective Time and Acquireco and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco; and
(xvixii) the Qualifying terms and conditions of such Holdco Shareholder Alternative must be satisfactory to Acquireco and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the PurchaserCorporation, acting reasonably, and must include representations and warranties which are satisfactory to Acquireco, acting reasonably.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation Acquireco of all transactions involved in such Holdco Alternative. In the event that the terms and conditions of such Holdco Alternative or any transactions involved in the Holdco Alternative are not satisfactory to Acquireco, acting reasonably, or the CSAs, Acquireco will use its commercially reasonable efforts, for a period not to exceed 15 Business Days, to assist the Corporation in structuring an alternative transaction in a manner satisfactory to Acquireco, acting reasonably. In the event that the terms and conditions of or the transactions involved in such Holdco Alternative are not satisfactory to the PurchaserAcquireco, acting reasonably, and no alternative transaction satisfactory to Acquireco, acting reasonably, can be agreed upon despite Acquireco having used its commercially reasonable efforts, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereof.
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco AgreementsAgreement”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described in this Section 2.10.
Appears in 1 contract
Holdco Alternative. (a) The Purchaser Subject to receipt of all required regulatory approvals, Acquireco will permit persons Persons (“Qualifying Holdco Shareholders”) thatwho are, (Aa) are resident in Canada for purposes of the Tax Act (including a partnership if all of the members of the partnership are resident in Canada); , and (Bb) are not exempt from tax under Part I of the Tax Act; (C) are registered and beneficial owners of Corporation Shares (directly or indirectly through a Qualifying Holdco) as of the date that is 10 Business Days after the date of mailing of the Circular; this Agreement, and (Dc) shareholders of a corporation that meets the conditions described below in this section 0 (a “Qualifying Holdco”) to elect in respect of such Corporation SharesShares (or Shares held by such Qualifying Holdco), by notice in writing provided to the Purchaser Acquireco (or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 15 10th Business Days after Day prior to the date of mailing of the Circular Effective Date (the “Holdco Election Date”), to sell all of the issued shares of such Shares through a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser Holdco (the “Holdco Alternative”), ) provided that:
(i) such Qualifying Holdco was incorporated under the OBCA CBCA not earlier than a date acceptable to Acquireco or will be continued under the date of this Agreement, unless written consent is obtained from the PurchaserCBCA;
(ii) such Qualifying Holdco is a single purpose corporation that has not carried on any business, has no employees, employees and has not held or and does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction other than those relating to and necessary for the ownership of the Corporation Shares or, with the Purchaser’s consent, such other transactions as are necessary to facilitate those transactions described in the Plan of Arrangement;
(iii) at the time of the acquisition of Qualifying Holdco Shares by the PurchaserEffective Time, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever whatever (except to Acquireco and the Purchaser Corporation under the terms of the Holdco AlternativeAlternative and the Voting Agreements);
(iv) except as provided by the Plan of Arrangement, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, prior to the Effective Time, such Qualifying Holdco shall not have paid any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time;
(v) such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed to the Purchaser by the Qualifying Holdco Shareholder, who shall be been the sole registered legal and beneficial owner of such shares free and clear of all LiensShares since February 15, and no other person shall have any option2007, warrant or other right to acquire any securities of such Qualifying Holdcolater date as Acquireco may determine in its sole discretion;
(viv) at all times such Qualifying Holdco shall be is a resident of Canada for the purposes of the Tax Act and shall is not be a resident of, of the United States and shall have has no taxable presence inin the United States;
(vi) all Qualifying Holdco Shareholders will be required to employ the same form of Holdco Alternative, any other countrywhich shall be a Holdco acquisition model;
(vii) such Qualifying Holdco shall have not more than three directors and three officers;
(viii) the Qualifying Holdco Shareholder shall at its cost and Alternative will be completed in a timely manner prepare and file all income Tax Returns of such Qualifying Holdco in respect of all taxation years of such Qualifying Holdco ending prior to the acquisition of such Qualifying Holdco Shares by the Purchaser, subject to the Purchaser’s right to approve all such Tax Returns as to form and substance;
(ix) the Qualifying Holdco Shareholder shall indemnify the Purchaser and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaser, acting reasonably;
(x) the Qualifying Holdco Shareholder will provide the Purchaser with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after the date of the mailing of the Circular, the completion of which will comply accordance with applicable Laws (including Securities securities Laws) at or prior to the Effective Time;
(xiviii) the Qualifying Holdco Shareholder and, if applicable, its shareholder and/or the ultimate principal investor of the Qualifying Holdco Shareholder will be required to provide a comprehensive indemnity in favour of Acquireco and the Corporation, on terms satisfactory to Acquireco, acting reasonably, in respect of (A) any liabilities of such Qualifying Holdco relating to any matter occurring on or before the Effective Time, and (B) any breach by the Qualifying Holdco Shareholder, and where applicable, its shareholder and/or the ultimate principal investor of the Qualifying Holdco Shareholder, of any representation, warranty, obligation or covenant of the Qualifying Holdco Shareholder, its shareholder and/or the ultimate principal investor of such Qualifying Holdco Shareholder, as the case may be, to Acquireco and the Corporation. For greater certainty, the term “liabilities” for purposes of this subsection 0 shall include any and all claims, demands, proceedings, losses, damages, liabilities, deficiencies, costs and expenses (including legal and other professional fees), interest, penalties and Taxes suffered or incurred by Acquireco, the Corporation and such Qualifying Holdco, as applicable;
(ix) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the date that is 20 Business Days after the date of the mailing of the Circular and the Purchaser and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco;
(xiii) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser and the Corporation, acting reasonably, and must include representations and warranties which are satisfactory to the Purchaser and the Corporation, each acting reasonably;
(xiv) the Qualifying Holdco Shareholder shall waive its dissent rights;
(xvx) the Qualifying Holdco Shareholder will be required to pay all of the reasonable out-of-pocket expenses incurred by the Purchaser or Acquireco, such Qualifying Holdco and the Corporation in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by Acquireco;
(xi) access to the Purchaser books and records of such Qualifying Holdco shall have been provided on or before 15 Business Days prior to the CorporationEffective Time and Acquireco and its counsel shall have completed their due diligence regarding the business and affairs of such Qualifying Holdco; and
(xvixii) the Qualifying terms and conditions of such Holdco Shareholder Alternative must be satisfactory to Acquireco and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the PurchaserCorporation, acting reasonably, and must include representations and warranties which are satisfactory to Acquireco, acting reasonably.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation Acquireco of all transactions involved in such Holdco Alternative. In the event that the terms and conditions of such Holdco Alternative or any transactions involved in the Holdco Alternative are not satisfactory to Acquireco, acting reasonably, or the CSAs, Acquireco will use its commercially reasonable efforts, for a period not to exceed 15 Business Days, to assist the Corporation in structuring an alternative transaction in a manner satisfactory to Acquireco, acting reasonably. In the event that the terms and conditions of or the transactions involved in such Holdco Alternative are not satisfactory to the PurchaserAcquireco, acting reasonably, and no alternative transactionsatisfactory to Acquireco, acting reasonably, can be agreed upon despite Acquireco having used its commercially reasonable efforts, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereof.
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco AgreementsAgreement”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described in this Section 2.10.
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Holdco Alternative. Each Franco-Nevada Shareholder shall be entitled to transfer its Franco-Nevada Shares to a newly-incorporated corporation (aa "HOLDCO") The Purchaser will permit persons and sell the Holdco Shares to either NSULC or Acquisitionco as provided in (“Qualifying Holdco Shareholders”S)2.3(a) that, (A) are resident in Canada for purposes provided that each of the Tax Act (including a partnership if all of the members of the partnership following conditions are resident in Canada); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Corporation Shares as of the date that is 10 Business Days after the date of mailing of the Circular; and (D) elect in respect of such Corporation Shares, by notice in writing provided to the Purchaser (satisfied on or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 15 Business Days after the date of mailing of the Circular (the “Holdco Election Date”), to sell all of the issued shares of a corporation (“Qualifying Holdco”), which shall not be comprised of more than one class of common shares, the terms and conditions of which shall be determined in consultation with the Purchaser (the “Holdco Alternative”), provided that:
(i) such Qualifying Holdco was incorporated under the OBCA not earlier than the date of this Agreement, unless written consent is obtained from the Purchaser;
(ii) such Qualifying Holdco is a single purpose corporation that has not carried on any business, has no employees, has not held or does not hold any assets other than Corporation Shares and a nominal amount of cash, has never entered into any transaction other than those relating prior to and necessary for the ownership of the Corporation Shares or, with the Purchaser’s consent, such other transactions as are necessary to facilitate those transactions described in the Plan of Arrangement;
(iii) at the time of the acquisition of Qualifying Holdco Shares by the Purchaser, such Qualifying Holdco has no liabilities or obligations of any kind whatsoever (except to the Purchaser under the terms of the Holdco Alternative);
(iv) except as provided by the Plan of Arrangement, at the Effective Time, such Qualifying Holdco will not have unpaid declared dividends and, prior to the Effective Time, such Qualifying Holdco shall not have paid any dividends or other distributions, other than one or more increases in stated capital, one or more stock dividends, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Effective Time, or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time;Date:
(va) such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed to the Purchaser by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of such Qualifying Holdco;
(vi) at all times such Qualifying Holdco shall be Franco-Nevada Shareholder is a resident of Canada for the purposes of the Tax Act and shall not be a resident of, and shall have no taxable presence in, any other countryITA;
(viib) such Qualifying Holdco shall have not more is incorporated no earlier than three directors and three officers60 days prior to the Effective Date, under the CBCA;
(viiic) the Qualifying Franco-Nevada Shareholder transfers its Franco-Nevada Shares to Holdco solely in consideration for the Holdco Shares;
(d) Holdco has no indebtedness or liabilities and owns no assets other than the Franco-Nevada Shares;
(e) the Franco-Nevada Shareholder indemnifies Newmont, Franco-Nevada, NSULC and Acquisitionco for any and all liabilities of Holdco (other than tax liabilities of Holdco that arise solely as a result of the tax status of Newmont, NSULC or Acquisitionco as a "financial institution" for purposes of the ITA) in a form satisfactory to Newmont in its sole discretion, and such Franco-Nevada Shareholder either has net assets as reflected on its audited financial statements for its most recently ended fiscal year which are satisfactory to Newmont or provides Newmont with security satisfactory to Newmont in respect of such shareholder's indemnification obligations as set out above;
(f) prior to the Effective Date, Holdco (i) declares one or more stock dividends which (if the Holdco Shares are to be acquired by Acquisitionco) may be in the form of preferred shares of Holdco that are converted into common shares of Holdco prior to the Effective Date, (ii) increases the stated capital of the Holdco Shares or (iii) (if the Holdco Shares are to be acquired by Acquisitionco) declares one or more cash dividends, provided that such cash is used to subscribe, directly or indirectly, for shares of Holdco;
(g) on the Effective Date, Holdco has no issued shares outstanding other than the shares described above and such shares will be owned by the Franco-Nevada Shareholder (and, if the Holdco Shares are to be acquired by Acquisitionco, one or more of its wholly-owned subsidiaries);
(h) on or prior to the Effective Date, Holdco has never entered into any transaction (or conducted any business or operations or engaged in any activity) other than those described herein;
(i) other than as provided (f) above, Holdco will not declare or pay any dividends or other distributions;
(j) the Franco-Nevada Shareholder shall at its cost and in a timely manner prepare and file all income Tax Returns tax returns of such Qualifying its Holdco in respect of all the taxation years year-end of such Qualifying Holdco ending immediately prior to the acquisition of such Qualifying Holdco Shares by Acquisitionco or NSULC, as the Purchasercase may be, subject to the Purchaser’s Newmont's right to approve all such Tax Returns returns as to form and substance;
(ixk) the Qualifying Holdco Franco-Nevada Shareholder shall indemnify the Purchaser provides Franco-Nevada and the Corporation, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter occurring prior to the acquisition of such Qualifying Holdco Shares by the Purchaser in a form satisfactory to the Purchaser, acting reasonably;
(x) the Qualifying Holdco Shareholder will provide the Purchaser Newmont with copies of all documents necessary to effect the transactions contemplated herein on or before the date that is 20 Business Days after the date of the mailing of the Circular, the completion of which will comply with applicable Laws in this (including Securities Laws) S)2.4 at or least ten days prior to the Effective Time;Date, which documents must be approved by both Franco-Nevada and Newmont in their sole discretion; and
(xil) the entering into or implementation of the Holdco Alternative will not result in any delay in completing any other transaction contemplated by this Agreement;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the date that is 20 Business Days after the date of the mailing of the Circular and the Purchaser Franco-Nevada Shareholder and its counsel shall have completed their due diligence regarding Holdco execute a share purchase agreement, in the business and affairs of such Qualifying Holdco;
(xiii) the terms and conditions of such Holdco Alternative and the Holdco Agreements (as defined below) must be satisfactory to the Purchaser and the Corporationform required by Newmont, acting reasonably, and must include representations and warranties which are satisfactory to providing for, among other things the Purchaser and the Corporation, each acting reasonably;
(xiv) the Qualifying Holdco Shareholder shall waive its dissent rights;
(xv) the Qualifying Holdco Shareholder will be required to pay all reasonable out-of-pocket expenses incurred by the Purchaser or the Corporation in connection with sale of the Holdco AlternativeShares to either NSULC or Acquisitionco, including any reasonable costs associated with any due diligence conducted by the Purchaser or the Corporation; and
(xvi) the Qualifying Holdco Shareholder and the Purchaser shall agree that the Purchaser or the Qualifying Holdco Shareholder may require that the Qualifying Holdco make the election provided in Section 256(9) of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by the Purchaser.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to the Purchaser and the Corporation of all transactions involved in such Holdco Alternative. In the event that containing the terms and conditions of or the transactions involved conditions, among others, set out in such Holdco Alternative are not satisfactory to the Purchaser, acting reasonably, no Holdco Alternative shall be offered and the other transactions contemplated by this Agreement shall be completed subject to the other terms and conditions hereof(S)2.4(a) - (k).
(c) Each Qualifying Holdco Shareholder that has elected the Holdco Alternative will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco Agreements”) providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by the Purchaser and for such other matters involving the Qualifying Holdco as contemplated by the Plan of Arrangement in a form consistent with the foregoing. Failure of any Qualifying Holdco Shareholder to properly elect the Holdco Alternative on or prior to the Holdco Election Date or failure of any Qualifying Holdco Shareholder to properly enter into a Holdco Agreement will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative.
(d) Upon request by a Qualifying Holdco Shareholder, the Purchaser may in its sole discretion agree to waive any of the requirements described in this Section 2.10.
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