Holdco Alternative. (a) ▇▇▇▇ ▇▇▇▇▇▇ will permit persons (“Qualifying Holdco Shareholders”) that, (A) are resident in Canada for purposes of the Tax Act (including a “Canadian partnership” as defined for the purposes of the Tax Act); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Norbord Shares as of the date that is 10 days prior to the Norbord Meeting; and (D) elect in respect of such Norbord Shares, by notice in writing provided to ▇▇▇▇ ▇▇▇▇▇▇ (or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 10 days prior to the Norbord Meeting (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 “Holdco Alternative”), provided that: (i) such Qualifying Holdco was incorporated under the CBCA or in another Canadian jurisdiction satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, not earlier than the date of this Agreement; (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 Norbord 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 Norbord Shares or, with ▇▇▇▇ ▇▇▇▇▇▇’▇ 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 the Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ (the “Acquisition Time”), such Qualifying Holdco will have no liabilities or obligations of any kind whatsoever, absolute or contingent, accrued or accruing (except to ▇▇▇▇ ▇▇▇▇▇▇ under the terms of the Holdco Alternative), and nothing shall have occurred that, with the passage of time or the happening of events, could lead to such liabilities or obligations; (iv) at the Acquisition Time, such Qualifying Holdco will not have unpaid declared dividends or other unpaid distributions of any description and, prior to the Acquisition Time, such Qualifying Holdco shall not have declared or 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 Acquisition 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 Acquisition Time; (v) at the Acquisition Time, such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed of to ▇▇▇▇ ▇▇▇▇▇▇ by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares with good and valid title thereto free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of or other interest of any description in such Qualifying Holdco, and the Qualifying Holdco shall be the sole registered and beneficial owner of its Norbord Shares with good and valid title thereto free and clear of all Liens; (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 the taxation year of such Qualifying Holdco ending prior to the Acquisition Time, subject to ▇▇▇▇ ▇▇▇▇▇▇’▇ right to approve all such Tax Returns as to form and substance; (ix) notwithstanding any other provision of this Agreement, the Qualifying Holdco Shareholder, and its ultimate controlling shareholder, shall indemnify ▇▇▇▇ ▇▇▇▇▇▇ and Norbord, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter in connection with the acquisition of such Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ that relates to the period prior to the Applicable Time, together with any inaccuracies in the provisos or failure to comply with any of the covenants referenced in this Section 2.13, in a form satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, each acting reasonably, such indemnities to survive the execution and delivery of this Agreement and the Effective Time; (x) the Qualifying Holdco Shareholder will provide ▇▇▇▇ ▇▇▇▇▇▇ with copies of all documents necessary to effect the transactions contemplated herein or ancillary thereto on or before the later of: (a) 5 days prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to the Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, the completion of which will comply with applicable Laws (including Securities Laws) at or prior to the Acquisition Time; (xi) the entering into or implementation of the Holdco Alternative will not result in any delay in the Norbord Meeting, the mailing date of the Norbord Circular or the completion of the Arrangement, and will not impair, impede or delay completing any other transaction contemplated by this Agreement, and will not be, in the opinion of ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, prejudicial or adverse to ▇▇▇▇ ▇▇▇▇▇▇ or Norbord; (xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the later of: (a) 5 days prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, and ▇▇▇▇ ▇▇▇▇▇▇ and its advisors 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 ▇▇▇▇ ▇▇▇▇▇▇ and Norbord in form and substance, each acting reasonably, and must include representations, warranties and indemnities which are satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, 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, including legal and accounting expenses, incurred by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord; (xvi) the Qualifying Holdco Shareholder and ▇▇▇▇ ▇▇▇▇▇▇ shall agree that ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇; (xvii) at the Acquisition Time, performance of this Agreement by the Qualifying Holdco Shareholder, and the consummation of the transactions contemplated hereby, will not (i) contravene, conflict with, or result in any violation or breach of any provision of the articles or by-laws or constating documents of the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law or judgment, order, writ, injunction or decree of any regulatory authority or Governmental Entity having jurisdiction over the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (iii) require any consent or other action by any person under, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, any provision of any contract to which the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable) is a party or by which it or any of its properties or assets may be bound; or (iv) result in the creation or imposition of any Lien on the Norbord Shares held by the Qualifying Holdco or the shares of the Qualifying Holdco being sold to ▇▇▇▇ ▇▇▇▇▇▇ by the Qualifying Holdco Shareholder; and (xviii) at the Acquisition Time, unless prior written consent is obtained by ▇▇▇▇ ▇▇▇▇▇▇, such Qualifying Holdco will not have made any election or designation under the Tax Act or any Canadian provincial or territorial income tax legislation, other than eligible dividend designations and proper elections made under section 85 of the Tax Act and any Canadian provincial or territorial income tax legislation in connection with the transactions contemplated herein. (b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to ▇▇▇▇ ▇▇▇▇▇▇ and Norbord, by the later of (i) 5 days prior to the date of the Norbord Meeting, and (ii) the date that is 15 days prior to the Effective Date, 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 ▇▇▇▇ ▇▇▇▇▇▇ in form and substance, acting reasonably, ▇▇▇▇ ▇▇▇▇▇▇ will consider reasonably any proposals put forward by the Qualifying Holdco Shareholder in structuring an alternative transaction in a manner satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably. In the event that the terms and conditions of the transactions involved in such Holdco Alternative are not satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, and no alternative transactions can be agreed, 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 (and, as required by ▇▇▇▇ ▇▇▇▇▇▇, the Qualifying Holdco Shareholder’s ultimate controlling 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 ▇▇▇▇ ▇▇▇▇▇▇ and for such other matters involving the Qualifying Holdco (including representations, warranties and indemnities reasonably acceptable to ▇▇▇▇ ▇▇▇▇▇▇ in form and substance) as are 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. Upon request by a Qualifying Holdco Shareholder, ▇▇▇▇ ▇▇▇▇▇▇ may in its sole discretion agree to waive any of the requirements described in this Section 2.13. (d) Norbord covenants and agrees to use commercially reasonable efforts, as determined by Norbord in its sole discretion and provided such efforts do not impair, impede or delay completion of the Arrangement, to cooperate in providing any information that a Shareholder may reasonably request in determining whether it will elect the Holdco Alternative.
Appears in 1 contract
Sources: Arrangement Agreement
Holdco Alternative. (a) ▇▇▇▇ ▇▇▇▇▇▇ will permit persons (“Qualifying Holdco Shareholders”) that, (A) are resident in Canada for purposes of the Tax Act (including a “Canadian partnership” as defined for the purposes of the Tax Act); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Norbord Shares as of the date that is 10 days prior to the Norbord Meeting; and (D) elect in respect of such Norbord Shares, by notice in writing provided to ▇▇▇▇ ▇▇▇▇▇▇ (or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 10 days prior to the Norbord Meeting (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 “Holdco Alternative”), provided that:
(i) such Qualifying Holdco was incorporated under the CBCA or in another Canadian jurisdiction satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, not earlier than the date of this Agreement;
(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 Norbord 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 Norbord Shares or, with ▇▇▇▇ ▇▇▇▇▇▇’▇ 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 the Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ (the “Acquisition Time”), such Qualifying Holdco will have no liabilities or obligations of any kind whatsoever, absolute or contingent, accrued or accruing (except to ▇▇▇▇ ▇▇▇▇▇▇ under the terms of the Holdco Alternative), and nothing shall have occurred that, with the passage of time or the happening of events, could lead to such liabilities or obligations;
(iv) at the Acquisition Time, such Qualifying Holdco will not have unpaid declared dividends or other unpaid distributions of any description and, prior to the Acquisition Time, such Qualifying Holdco shall not have declared or 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 Acquisition 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 Acquisition Time;
(v) at the Acquisition Time, such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed of to ▇▇▇▇ ▇▇▇▇▇▇ by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares with good and valid title thereto free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of or other interest of any description in such Qualifying Holdco, and the Qualifying Holdco shall be the sole registered and beneficial owner of its Norbord Shares with good and valid title thereto free and clear of all Liens;
(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 the taxation year of such Qualifying Holdco ending prior to the Acquisition Time, subject to ▇▇▇▇ ▇▇▇▇▇▇’▇ right to approve all such Tax Returns as to form and substance;
(ix) notwithstanding any other provision of this Agreement, the Qualifying Holdco Shareholder, and its ultimate controlling shareholder, shall indemnify ▇▇▇▇ ▇▇▇▇▇▇ and Norbord, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter in connection with the acquisition of such Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ that relates to the period prior to the Applicable Effective Time, together with any inaccuracies in the provisos or failure to comply with any of the covenants referenced in this Section 2.13, in a form satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇Norbord, each acting reasonably, such indemnities to survive the execution and delivery of this Agreement and the Effective Time;
(x) the Qualifying Holdco Shareholder will provide ▇▇▇▇ ▇▇▇▇▇▇ with copies of all documents necessary to effect the transactions contemplated herein or ancillary thereto on or before the later of: (a) 5 days prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to the Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, the completion of which will comply with applicable Laws (including Securities Laws) at or prior to the Acquisition Time;
(xi) the entering into or implementation of the Holdco Alternative will not result in any delay in the Norbord Meeting, the mailing date of the Norbord Circular or the completion of the Arrangement, and will not impair, impede or delay completing any other transaction contemplated by this Agreement, and will not be, in the opinion of ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, prejudicial or adverse to ▇▇▇▇ ▇▇▇▇▇▇ or Norbord;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the later of: (a) 5 days prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, and ▇▇▇▇ ▇▇▇▇▇▇ and its advisors 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 ▇▇▇▇ ▇▇▇▇▇▇ and Norbord in form and substance, each acting reasonably, and must include representations, warranties and indemnities which are satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇Norbord, 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, including legal and accounting expenses, incurred by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord;
(xvi) the Qualifying Holdco Shareholder and ▇▇▇▇ ▇▇▇▇▇▇ shall agree that ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇;
(xvii) at the Acquisition Time, performance of this Agreement by the Qualifying Holdco Shareholder, and the consummation of the transactions contemplated hereby, will not (i) contravene, conflict with, or result in any violation or breach of any provision of the articles or by-laws or constating documents of the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law or judgment, order, writ, injunction or decree of any regulatory authority or Governmental Entity having jurisdiction over the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (iii) require any consent or other action by any person under, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, any provision of any contract to which the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable) is a party or by which it or any of its properties or assets may be bound; or (iv) result in the creation or imposition of any Lien on the Norbord Shares held by the Qualifying Holdco or the shares of the Qualifying Holdco being sold to ▇▇▇▇ ▇▇▇▇▇▇ by the Qualifying Holdco Shareholder; and
(xviii) at the Acquisition Time, unless prior written consent is obtained by ▇▇▇▇ ▇▇▇▇▇▇, such Qualifying Holdco will not have made any election or designation under the Tax Act or any Canadian provincial or territorial income tax legislation, other than eligible dividend designations and proper elections made under section 85 of the Tax Act and any Canadian provincial or territorial income tax legislation in connection with the transactions contemplated herein.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to ▇▇▇▇ ▇▇▇▇▇▇ and Norbord, by the later of (i) 5 days prior to the date of the Norbord Meeting, and (ii) the date that is 15 days prior to the Effective Date, 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 ▇▇▇▇ ▇▇▇▇▇▇ in form and substance, acting reasonably, ▇▇▇▇ ▇▇▇▇▇▇ will consider reasonably any proposals put forward by the Qualifying Holdco Shareholder in structuring an alternative transaction in a manner satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably. In the event that the terms and conditions of the transactions involved in such Holdco Alternative are not satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, and no alternative transactions can be agreed, 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 (and, as required by ▇▇▇▇ ▇▇▇▇▇▇, the Qualifying Holdco Shareholder’s ultimate controlling 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 ▇▇▇▇ ▇▇▇▇▇▇ and for such other matters involving the Qualifying Holdco (including representations, warranties and indemnities reasonably acceptable to ▇▇▇▇ ▇▇▇▇▇▇ in form and substance) as are 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. Upon request by a Qualifying Holdco Shareholder, ▇▇▇▇ ▇▇▇▇▇▇ may in its sole discretion agree to waive any of the requirements described in this Section 2.13.
(d) Norbord covenants and agrees to use commercially reasonable efforts, as determined by Norbord in its sole discretion and provided such efforts do not impair, impede or delay completion of the Arrangement, to cooperate in providing any information that a Shareholder may reasonably request in determining whether it will elect the Holdco Alternative.
Appears in 1 contract
Sources: Arrangement Agreement (Norbord Inc.)
Holdco Alternative. (a) ▇▇▇▇ ▇▇▇▇▇▇ will permit persons (“Qualifying Holdco Shareholders”) that, (A) are resident in Canada for purposes of the Tax Act (including a “Canadian partnership” as defined for the purposes of the Tax Act); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Norbord Shares as of the date that is 10 days prior to the Norbord Meeting; and (D) elect in respect of such Norbord Shares, by notice in writing provided to ▇▇▇▇ ▇▇▇▇▇▇ (or the Depositary) not later than 5:00 p.m. (Toronto time) on the date that is 10 days prior to the Norbord Meeting (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 “Holdco Alternative”), provided that:
(i) such Qualifying Holdco was incorporated under the CBCA or in another Canadian jurisdiction satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, not earlier than the date of this Agreement;
(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 Norbord 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 Norbord Shares or, with ▇▇▇▇ ▇▇▇▇▇▇’▇ 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 the Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ (the “Acquisition Time”), such Qualifying Holdco will have no liabilities or obligations of any kind whatsoever, absolute or contingent, accrued or accruing (except to ▇▇▇▇ ▇▇▇▇▇▇ under the terms of the Holdco Alternative), and nothing shall have occurred that, with the passage of time or the happening of events, could lead to such liabilities or obligations;
(iv) at the Acquisition Time, such Qualifying Holdco will not have unpaid declared dividends or other unpaid distributions of any description and, prior to the Acquisition Time, such Qualifying Holdco shall not have declared or 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 Acquisition 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 Acquisition Time;
(v) at the Acquisition Time, such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed of to ▇▇▇▇ ▇▇▇▇▇▇ by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares with good and valid title thereto free and clear of all Liens, and no other person shall have any option, warrant or other right to acquire any securities of or other interest of any description in such Qualifying Holdco, and the Qualifying Holdco shall be the sole registered and beneficial owner of its Norbord Shares with good and valid title thereto free and clear of all Liens;
(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 the taxation year of such Qualifying Holdco ending prior to the Acquisition Time, subject to ▇▇▇▇ ▇▇▇▇▇▇’▇ right to approve all such Tax Returns as to form and substance;
(ix) notwithstanding any other provision of this Agreement, the Qualifying Holdco Shareholder, and its ultimate controlling shareholder, shall indemnify ▇▇▇▇ ▇▇▇▇▇▇ and Norbord, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter in connection with the acquisition of such Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ that relates to the period prior to the Applicable Time, together with any inaccuracies in the provisos or failure to comply with any of the covenants referenced in this Section 2.13, in a form satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇Norbord, each acting reasonably, such indemnities to survive the execution and delivery of this Agreement and the Effective Time;
(x) the Qualifying Holdco Shareholder will provide ▇▇▇▇ ▇▇▇▇▇▇ with copies of all documents necessary to effect the transactions contemplated herein or ancillary thereto on or before the later of: (a) 5 days prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to the Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, the completion of which will comply with applicable Laws (including Securities Laws) at or prior to the Acquisition Time;
(xi) the entering into or implementation of the Holdco Alternative will not result in any delay in the Norbord Meeting, the mailing date of the Norbord Circular or the completion of the Arrangement, and will not impair, impede or delay completing any other transaction contemplated by this Agreement, and will not be, in the opinion of ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, prejudicial or adverse to ▇▇▇▇ ▇▇▇▇▇▇ or Norbord;
(xii) access to the books and records of such Qualifying Holdco shall have been provided on or before the later of: (a) 5 days prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, and ▇▇▇▇ ▇▇▇▇▇▇ and its advisors 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 ▇▇▇▇ ▇▇▇▇▇▇ and Norbord in form and substance, each acting reasonably, and must include representations, warranties and indemnities which are satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇Norbord, 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, including legal and accounting expenses, incurred by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord;
(xvi) the Qualifying Holdco Shareholder and ▇▇▇▇ ▇▇▇▇▇▇ shall agree that ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇;
; (xvii) at the Acquisition Time, performance of this Agreement by the Qualifying Holdco Shareholder, and the consummation of the transactions contemplated hereby, will not (i) contravene, conflict with, or result in any violation or breach of any provision of the articles or by-laws or constating documents of the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law or judgment, order, writ, injunction or decree of any regulatory authority or Governmental Entity having jurisdiction over the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (iii) require any consent or other action by any person under, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, any provision of any contract to which the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable) is a party or by which it or any of its properties or assets may be bound; or (iv) result in the creation or imposition of any Lien on the Norbord Shares held by the Qualifying Holdco or the shares of the Qualifying Holdco being sold to ▇▇▇▇ ▇▇▇▇▇▇ by the Qualifying Holdco Shareholder; and
(xviii) at the Acquisition Time, unless prior written consent is obtained by ▇▇▇▇ ▇▇▇▇▇▇, such Qualifying Holdco will not have made any election or designation under the Tax Act or any Canadian provincial or territorial income tax legislation, other than eligible dividend designations and proper elections made under section 85 of the Tax Act and any Canadian provincial or territorial income tax legislation in connection with the transactions contemplated herein.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to ▇▇▇▇ ▇▇▇▇▇▇ and Norbord, by the later of (i) 5 days prior to the date of the Norbord Meeting, and (ii) the date that is 15 days prior to the Effective Date, 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 ▇▇▇▇ ▇▇▇▇▇▇ in form and substance, acting reasonably, ▇▇▇▇ ▇▇▇▇▇▇ will consider reasonably any proposals put forward by the Qualifying Holdco Shareholder in structuring an alternative transaction in a manner satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably. In the event that the terms and conditions of the transactions involved in such Holdco Alternative are not satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, and no alternative transactions can be agreed, 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 (and, as required by ▇▇▇▇ ▇▇▇▇▇▇, the Qualifying Holdco Shareholder’s ultimate controlling 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 ▇▇▇▇ ▇▇▇▇▇▇ and for such other matters involving the Qualifying Holdco (including representations, warranties and indemnities reasonably acceptable to ▇▇▇▇ ▇▇▇▇▇▇ in form and substance) as are 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. Upon request by a Qualifying Holdco Shareholder, ▇▇▇▇ ▇▇▇▇▇▇ may in its sole discretion agree to waive any of the requirements described in this Section 2.13.
(d) Norbord covenants and agrees to use commercially reasonable efforts, as determined by Norbord in its sole discretion and provided such efforts do not impair, impede or delay completion of the Arrangement, to cooperate in providing any information that a Shareholder may reasonably request in determining whether it will elect the Holdco Alternative.
Appears in 1 contract
Sources: Arrangement Agreement (Norbord Inc.)
Holdco Alternative. (a) ▇▇▇▇ ▇▇▇▇▇▇ CanCo 1 will permit persons any Person (a “Qualifying Holdco ShareholdersShareholder”) that, (A) are that is a registered owner of Company Common Shares before the 10th Business Day prior to the Effective Time and is not a non-resident in of Canada for purposes of within the Tax Act (including a “Canadian partnership” as defined for the purposes meaning of the Tax Act); (B) are not exempt from tax under Part I of the Tax Act; (C) are registered owners of Norbord Shares as of the date that is 10 days prior , to the Norbord Meeting; and (D) elect in respect of such Norbord Company Common Shares, by notice in writing provided to ▇▇▇▇ ▇▇▇▇▇▇ (or the Depositary) CanCo 1 and Parent not later than 5:00 p.m. (Toronto time) on the date that is 10 days 10th Business Day prior to the Norbord Meeting Effective Date (the “Holdco Election Date”), to sell to CanCo 1 all of the issued shares of a corporation (a “Qualifying Holdco”), which shall not be comprised of more than one class of common shares, that meets the terms and conditions of which shall be determined in consultation with ▇▇▇▇ ▇▇▇▇▇▇ described below (collectively, the “Holdco Alternative”), provided that:):
(i) such Qualifying Holdco was incorporated under the CBCA or in another Canadian jurisdiction satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, laws of Canada not earlier than the date of this Agreement, unless written consent is obtained from Parent;
(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 Norbord Company Common 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 Norbord Company Common Shares or, with ▇▇▇▇ ▇▇▇▇▇▇’▇ Parent’s prior written 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 the Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ (the “Acquisition Effective Time”), such Qualifying Holdco will have has no liabilities or obligations of any kind whatsoever, absolute or contingent, accrued or accruing whatever (except to ▇▇▇▇ ▇▇▇▇▇▇ IrishCo, CanCo 1 or the Company under the terms of the Holdco Alternative), and nothing shall have occurred that, with the passage of time or the happening of events, could lead to such liabilities or obligations;
(iv) at the Acquisition Effective Time, such Qualifying Holdco will not have unpaid declared dividends or other unpaid distributions of any description and, prior to the Acquisition Effective Time, such Qualifying Holdco shall not have declared or paid any dividends or other distributions, other than one or more increases an increase in stated capital, one or more a share/stock dividendsdividend, a cash dividend financed with a daylight loan, which shall not be outstanding as of the Acquisition Time, loan 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 at the Acquisition Effective Time;
(v) at the Acquisition Time, such Qualifying Holdco shall have no shares outstanding other than the shares (the “Qualifying Holdco Shares”) being disposed of transferred to ▇▇▇▇ ▇▇▇▇▇▇ CanCo 1 by the Qualifying Holdco Shareholder, who shall be the sole registered and beneficial owner of such shares with good and valid title thereto free and clear of all Liensencumbrances, and no other person Person shall have any option, warrant or other right to acquire any securities of or other interest of any description in such Qualifying Holdco, and the Qualifying Holdco shall be the sole registered and beneficial owner of its Norbord Shares with good and valid title thereto free and clear of all Liens;
(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 the taxation year of such Qualifying Holdco ending immediately prior to the Acquisition Timeacquisition of such Qualifying Holdco by CanCo 1, subject to ▇▇▇▇ ▇▇▇▇▇▇’▇ IrishCo’s right to approve all such Tax Returns as to form and substance, such approval not to be unreasonably withheld or delayed;
(ix) notwithstanding any other provision of this Agreement, the Qualifying Holdco Shareholder, and its ultimate controlling shareholder, Shareholder shall indemnify ▇▇▇▇ ▇▇▇▇▇▇ the Company and NorbordCanCo 1, and any successor thereof, for any and all liabilities of the Qualifying Holdco in respect of any matter in connection with existing at or before the acquisition of such Qualifying Holdco Shares by ▇▇▇▇ ▇▇▇▇▇▇ that relates to the period prior to the Applicable Time, together with any inaccuracies in the provisos or failure to comply with any of the covenants referenced in this Section 2.13, Effective Time in a form satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, each Parent acting reasonably, such indemnities to survive the execution and delivery of this Agreement and the Effective Time;
(x) each Qualifying Holdco Shareholder will be required to enter into a share purchase agreement and other ancillary documentation (collectively, the “Holdco Agreements”) with CanCo 1 containing representations and warranties and covenants acceptable to Parent, acting reasonably;
(xi) the Qualifying Holdco Shareholder will provide ▇▇▇▇ ▇▇▇▇▇▇ the Company, Parent and CanCo 1 with copies of all documents necessary to effect the transactions contemplated herein or ancillary thereto on or before the later of: (a) 5 days prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to 10th Business Day preceding the Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, the completion of which will comply with applicable Laws (including Canadian Securities Laws) at or prior to the Acquisition Effective Time;
(xixii) the entering into or implementation of the Holdco Alternative will not result in any delay in the Norbord Meeting, the mailing date of the Norbord Circular or the completion of the Arrangement, and will not impair, impede or delay completing any other transaction contemplated by this Agreement, and will not be, in the opinion of ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, prejudicial or adverse to ▇▇▇▇ ▇▇▇▇▇▇ or Norbord;
(xiixiii) access to the books and records of such Qualifying Holdco shall have been provided on or before the later of: (a) 5 days 10th Business Day prior to the date of the Norbord Meeting or (b) the date that is 15 days prior to Effective Date, as communicated by ▇▇▇▇ ▇▇▇▇▇▇ to the Qualifying Holdco Shareholder, Date and ▇▇▇▇ ▇▇▇▇▇▇ Parent and its advisors 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 ▇▇▇▇ ▇▇▇▇▇▇ and Norbord in form and substance, each acting reasonably, and must include representations, warranties and indemnities which are satisfactory to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, each acting reasonably;; and
(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, including legal and accounting expenses, expenses incurred by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord Parent, CanCo 1 and the Company in connection with the Holdco Alternative, including any reasonable costs associated with any due diligence conducted by ▇▇▇▇ ▇▇▇▇▇▇ or Norbord;
(xvi) the Qualifying Holdco Shareholder and ▇▇▇▇ ▇▇▇▇▇▇ shall agree that ▇▇▇▇ ▇▇▇▇▇▇ Parent, CanCo 1 or the Qualifying Holdco Shareholder may require that Company and the Qualifying Holdco make the election provided in section 256(9) computation of the Tax Act in respect of the acquisition of control of the Qualifying Holdco by ▇▇▇▇ ▇▇▇▇▇▇;
(xvii) at the Acquisition Time, performance of this Agreement by the Qualifying Holdco Shareholder, and the consummation of the transactions contemplated hereby, will not (i) contravene, conflict with, or result in any violation or breach of any provision of the articles or by-laws or constating documents of the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law or judgment, order, writ, injunction or decree of any regulatory authority or Governmental Entity having jurisdiction over the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable); (iii) require any consent or other action by any person under, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, any provision of any contract to which the Qualifying Holdco or Qualifying Holdco Shareholder (if applicable) is a party or by which it or any of its properties or assets may be bound; or (iv) result in the creation or imposition of any Lien on the Norbord Shares held by the Qualifying Holdco or the shares of the Qualifying Holdco being sold to ▇▇▇▇ ▇▇▇▇▇▇ by the Qualifying Holdco Shareholder; and
(xviii) at the Acquisition Time, unless prior written consent is obtained by ▇▇▇▇ ▇▇▇▇▇▇, such Qualifying Holdco will not have made any election or designation under the Tax Act or any Canadian provincial or territorial income tax legislation, other than eligible dividend designations and proper elections made under section 85 of the Tax Act and any Canadian provincial or territorial income tax legislation in connection with the transactions contemplated hereinCompany’s safe income.
(b) Any Qualifying Holdco Shareholder who elects the Holdco Alternative will be required to make full disclosure to ▇▇▇▇ ▇▇▇▇▇▇ Parent and Norbord, by the later of (i) 5 days prior to the date of the Norbord Meeting, and (ii) the date that is 15 days prior to the Effective Date, CanCo 1 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 ▇▇▇▇ ▇▇▇▇▇▇ in form and substanceParent, acting reasonably, ▇▇▇▇ ▇▇▇▇▇▇ will consider reasonably any proposals put forward by the Qualifying Holdco Shareholder in structuring an alternative transaction in a manner satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably. In the event that the terms and conditions of the transactions involved in such Holdco Alternative are not satisfactory to ▇▇▇▇ ▇▇▇▇▇▇, acting reasonably, and no alternative transactions can be agreed, 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 (and, as required by ▇▇▇▇ ▇▇▇▇▇▇, the Qualifying Holdco Shareholder’s ultimate controlling 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”) Agreements providing for the acquisition of all issued and outstanding shares of the Qualifying Holdco by ▇▇▇▇ ▇▇▇▇▇▇ and for such other matters involving the Qualifying Holdco (including representations, warranties and indemnities reasonably acceptable to ▇▇▇▇ ▇▇▇▇▇▇ in form and substance) as are 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 the Holdco Agreement Agreements will disentitle such Qualifying Holdco Shareholder from the Holdco Alternative. .
(d) Upon request by a Qualifying Holdco Shareholder, ▇▇▇▇ ▇▇▇▇▇▇ Parent may in its sole discretion agree to waive any of the requirements described in this Section 2.132.6.
(de) Norbord covenants Notwithstanding the foregoing provisions of this Section 2.6 and agrees to use commercially reasonable effortsSection 9.9, as determined by Norbord Parent may, in its sole discretion and provided upon providing written notice to the other Parties, amend the structure of the Holdco Alternative and the provisions of this Section 2.6, including to permit the Holdco Alternative to be effected as a “tuck under” transaction, so long as any such efforts amendments do not impairand will not have an adverse impact on any Person wishing to elect the Holdco Alternative. In addition, impede or delay completion Parent may, in its sole discretion and upon providing written notice to the other Parties, amend the Plan of Arrangement pursuant to Section 5.1(e) of the Arrangement, Plan of Arrangement to cooperate in providing give effect to any information that a Shareholder may reasonably request in determining whether it such amendments to the Holdco Alternative and this Section 2.6 so long as any such amendments to the Plan of Arrangement do not and will not have an adverse impact on any Person wishing to elect the Holdco Alternative.
Appears in 1 contract