The Arrangement. Commencing at the Effective Time on the Effective Date, subject to the terms and conditions of the Arrangement Agreement, the following shall occur as part of the Arrangement and shall be deemed to occur in the following order without any further act or formality: (a) each Nanotech Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined in the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereof, subject to applicable withholdings in accordance with Section 4.4, such Dissenting Shareholder shall cease to be the holder of such Nanotech Shares and to have any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder of the Nanotech Shares so transferred and shall be deemed to be the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by Nanotech; (b) each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation by Nanotech, free and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.4, and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(b); (c) each Out-of-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money Options; (d) each Nanotech RSU that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on the part of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Price, subject to applicable withholdings in accordance with Section 4.4, and each such Nanotech RSU issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(d); and (e) each issued and outstanding Nanotech Share (other than Nanotech Shares held by META or an affiliate thereof or Dissenting Shareholders) held by a Nanotech Shareholder shall be transferred by the holder thereof, without any further action or formality on the part of the holder, free and clear of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on the Effective Date notwithstanding that certain of the procedures related thereto may not be completed until after the Effective Date.
Appears in 1 contract
The Arrangement. Commencing at the Effective Time on the Effective Date, subject to the terms and conditions of the Arrangement Agreement, the following shall occur as part of the Arrangement and shall be deemed to occur in the following order without any further act or formality:2.1 Implementation Steps by UNE
(a) each Nanotech Share held by as soon as reasonably practicable, apply in a Dissenting Shareholder shall be deemed manner acceptable to be transferred by Altima, acting reasonably, under Section 291(1) of the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined in BCBCA for the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereof, subject to applicable withholdings in accordance with Section 4.4, such Dissenting Shareholder shall cease to be the holder of such Nanotech Shares and to have any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech SharesInterim Order, and Nanotech shall be recorded as thereafter proceed with and diligently seek the registered holder of the Nanotech Shares so transferred and shall be deemed to be the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by NanotechInterim Order;
(b) each In-The-Money Option that is outstanding immediately prior lawfully convene and hold the UNE Meeting for the purpose of considering the Arrangement Resolution (and for no other purpose other than such matters as are ordinarily submitted to the Effective Timeshareholders at an annual general meeting of shareholders, whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation unless agreed to by Nanotech, free and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money OptionAltima) as soon as reasonably practicable, subject to applicable withholdings in accordance with Section 4.4, and the name of such holder will adjournments or postponements which may be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled required pursuant to this Section 2.2(b);
(c) each Out-of-The-Money Option that is outstanding immediately prior subject to obtaining the approvals as are required by the Interim Order, as soon as practicable, but in any event within five Business Days after the UNE Meeting, proceed with and diligently pursue the application to the Effective Time, whether or not vested, shall, without any further action on behalf of Court for the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof and all option agreements related thereto shall be terminated and Final Order approving the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money OptionsArrangement;
(d) subject to obtaining the Final Order and the satisfaction or waiver of the other conditions herein contained in favour of each Nanotech RSU that is outstanding immediately party, as soon as reasonably practicable, take all steps and actions, including without limitation making all necessary filings with Governmental Entities (including any required filings under the BCBCA) to give effect to the Arrangement prior to the Effective TimeTermination Date;
(e) instruct counsel acting for it to prepare and submit the applications referred to in Sections and in co-operation with counsel to Altima;
(f) permit Altima and its counsel to review and comment upon drafts of all material to be filed by UNE with the Court in connection with the Arrangement, whether including the Circular and any supplement or not vestedamendment to the Circular contemplated by Section 2.5(c), shall, without and provide counsel to Altima on a timely basis with copies of any further action notice of appearance and evidence served on the part UNE or its counsel in respect of the holder thereof, be acquired application for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Price, subject to applicable withholdings in accordance with Section 4.4, and each such Nanotech RSU issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled Interim Order and the name Final Order or any appeal therefrom and of such holder will be removed from any notice (written or oral) received by UNE indicating any intention to oppose the applicable register granting of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and the holder thereof shall thereafter have only Interim Order or the right Final Order or to receive appeal the Consideration to which such holder is entitled pursuant to this Section 2.2(d)Interim Order or the Final Order; and
(eg) each issued not file any material with the Court in connection with the Arrangement or serve any such material, and outstanding Nanotech Share (other than Nanotech Shares held by META not agree to modify or an affiliate thereof amend materials so filed or Dissenting Shareholders) held by a Nanotech Shareholder shall be transferred by the holder thereofserved except as contemplated hereby or with Altima' prior written consent, without any further action or formality on the part of the holder, free and clear of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on the Effective Date notwithstanding that certain of the procedures related thereto may such consent not be completed until after the Effective Dateunreasonably withheld or delayed.
Appears in 1 contract
The Arrangement. Commencing at The parties hereto agree to complete the Effective Time Arrangement pursuant to the provisions of Part 9, Division 5 of the BCBCA, on the Effective Date, terms and subject to the terms conditions contained in this Agreement and conditions the Plan of the Arrangement Agreement, the following shall occur as part of the Arrangement and shall be deemed use all reasonable commercial efforts to occur give effect to the Arrangement, including the Consolidation, Name Change, Authorized Capital Amendment, Merger and the Spin- Out Transaction on the terms contemplated herein and, in particular, shall take the following order without any further act or formalitysteps:
(a) each Nanotech Share held by a Dissenting Shareholder Broadway shall be deemed provide to MindMed confirmation, as soon as reasonably practicable after the execution of this Agreement, that Broadway has made an initial submission to the Exchange for the Exchange’s preliminary approval regarding the transactions to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined carried out in connection with the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereof, subject to applicable withholdings in accordance with Section 4.4, such Dissenting Shareholder shall cease to be the holder of such Nanotech Shares and to have any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder of the Nanotech Shares so transferred and shall be deemed to be the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by NanotechExchange policies;
(b) following execution of this Agreement, Broadway shall apply to the Court pursuant to Part 9, Division 5 of the BCBCA for an Interim Order providing for, among other things, the calling and holding of the Broadway Meeting for the purpose of considering and, if deemed advisable, approving the Arrangement and in connection therewith shall inform the Court that upon approval from the Court and consummation of the Arrangement, the Parties intend to rely on Section 3(a)(10) under the U.S. Securities Act to issue Broadway Subordinate Voting Shares or Broadway Multiple Voting Shares (as the case may be) and Broadway Replacement Warrants to MindMed Shareholders and holders of MindMed Warrants, respectively, in connection with the Merger and Spinco Common Shares to Broadway Shareholders in connection with the Spinout Transaction, where in each In-The-Money Option case such shareholders are residing in the United States, without registration under the U.S. Securities Act. In order to ensure the availability of such exemption, the Parties agree that the Arrangement (including the Merger and the Spinout Transaction) shall be carried out on the following basis:
(i) the Arrangement shall be subject to the approval of the Court;
(ii) prior to the hearing required to approve the Arrangement, the Court will be advised as to the intention of the Parties to rely on Section 3(a)(10) under the U.S. Securities Act with respect to the issuance of Broadway Subordinate Voting Shares or Broadway Multiple Voting Shares (as the case may be) and Broadway Replacement Warrants and Spinco Common Shares pursuant to the Arrangement based on the Court’s approval of the Arrangement;
(iii) the Court shall be required to satisfy itself as to the substantive and procedural fairness of the Arrangement to the Broadway Shareholders, the MindMed Shareholders and the holders of MindMed Warrants subject to the Arrangement;
(iv) the Final Order shall expressly state that the Arrangement is outstanding immediately approved by the Court as being fair to the Broadway Shareholders, the MindMed Shareholders and the holders of MindMed Warrants to whom securities shall be issued;
(v) Broadway and MindMed shall ensure that each Broadway Shareholder and MindMed Shareholder, as applicable, shall be given adequate, appropriate and timely notice advising them of their right to attend the hearing of the Court to give approval of the Arrangement and providing them with sufficient information necessary for them to exercise that right;
(vi) all persons entitled to receive Broadway Subordinate Voting Shares or Broadway Multiple Voting Shares (as the case may be), Broadway Replacement Warrants and Spinco Common Shares pursuant to the Arrangement shall be advised that such securities have not been registered under the U.S. Securities Act and shall be issued by each of Broadway and Spinco, respectively, in reliance on the exemption from the registration requirements of the U.S. Securities Act provided by Section 3(a)(10) of the U.S. Securities Act and may be subject to restrictions on resale under the securities laws of the United States, including, as applicable, Rule 144 under the U.S. Securities Act with respect to affiliates of Broadway, MindMed and Spinco after the Effective Time or within 90 days prior to the Effective Time;
(vii) the Interim Order shall specify that each Person entitled to receive Broadway Subordinate Voting Shares or Broadway Multiple Voting Shares (as the case may be), whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation by Nanotech, free Broadway Replacement Warrants and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal Spinco Common Shares pursuant to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.4, and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time Arrangement shall thereafter immediately be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive appear before the Consideration Court at the hearing of the Court to which give approval of the Arrangement so long as such holder is entitled Person files and delivers an appearance within a reasonable time; and
(viii) the Final Order shall include a statement substantially to the following effect: “This Order shall serve as a basis of a claim to an exemption, pursuant to this Section 2.2(b)3(a)(10) of the United States Securities Act of 1933, as amended, from the registration requirements otherwise imposed by that act, regarding the distribution of securities of Broadway Gold Mining Inc. and Spinco, pursuant to or in connection with the Plan of Arrangement”;
(c) each Out-of-The-Money Option that is outstanding immediately prior to Broadway shall call the Effective TimeBroadway Meeting for the purpose of considering and, whether or not vestedif deemed advisable, shall, without any further action on behalf of approving the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof transactions comprising the Arrangement in accordance with Exchange policies and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money Optionslaws;
(d) each Nanotech RSU that MindMed shall call the MindMed Meeting for the purpose of considering and, if deemed advisable, approving the Merger and related transactions;
(e) Broadway, as sole shareholder of Delaware Subco, shall approve the Merger;
(f) Broadway, as sole shareholder of Spinco, shall approve the Spin-Out Transaction;
(g) Broadway shall, if the Arrangement, Name Change, Consolidation and Authorized Capital Amendment are approved by the shareholders of Broadway and MindMed in accordance with the articles of Broadway, the policies of the Exchange, the laws of Delaware, the BCBCA and the Interim Order, proceed to make application for the Final Order as soon as reasonably practicable after the date on which the Broadway Meeting is outstanding immediately prior held, and shall diligently prosecute the application for the Final Order (in accordance with and subject to the Effective Time, whether or not vested, shall, without any further action on the part terms of the holder thereofInterim Order);
(h) as soon as practicable after receipt of the Final Order, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal Broadway shall apply to the Nanotech Share PriceExchange for its final consent to completion and effectiveness of the Arrangement;
(i) if the Final Order is obtained, subject to applicable withholdings the satisfaction, waiver or release of the conditions set out in accordance with Section 4.4this Agreement, including receipt of all outstanding approvals, Broadway will complete the Consolidation, Name Change and each Authorized Capital Amendment, Broadway and Spinco will complete the Spin-Out Transaction, the Merging Corporations will complete the Merger and Broadway will file a certified copy of the Final Order and such Nanotech RSU issued and outstanding immediately prior other documents as are required to be filed under the BCBCA for acceptance by the Registrar to give effect to the Effective Time shall thereafter immediately be cancelled and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled Arrangement pursuant to this Section 2.2(d)291(4) of the BCBCA; and
(ej) each issued and outstanding Nanotech Share (other than Nanotech Shares held by META or an affiliate thereof or Dissenting Shareholders) held by a Nanotech Shareholder shall be transferred by immediately following the holder thereof, without any further action or formality on the part filing of the holderFinal Order with the Registrar, free Broadway, MindMed as the surviving corporation pursuant to the Merger and clear Spinco shall take such other steps as may be necessary to give effect to the Plan of all EncumbrancesArrangement, including issuance and delivery of certificates (or direct registration or other book- entry system confirmations) and other documents representing the securities of Broadway (with respect to the Merger) and Spinco (with respect to the Spin-Out Transaction) to be issued or transferred, as the case may be, to Purchaser the Broadway securityholders, as contemplated in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on the Effective Date notwithstanding that certain Plan of the procedures related thereto may not be completed until after the Effective DateArrangement.
Appears in 1 contract
Sources: Arrangement Agreement
The Arrangement. Commencing The Company, Telecure and Acquireco agree that the Arrangement shall be implemented in accordance with the terms and subject to the conditions contained in this Agreement and the Plan of Arrangement, and in connection therewith, the Parties agree that:
(a) upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Florida Act and the BCBCA, at the Effective Time Time, Acquireco shall be merged with and into the Company, the separate existence of Acquireco shall cease and the Company shall continue as the Surviving Company in the Merger; the Merger shall have the effects set forth in this Agreement and in the applicable provisions of the Florida Act. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all property of Acquireco and the Company shall vest in the Surviving Company, all liabilities and duties of Acquireco and the Company shall become liabilities and duties of the Surviving Company, and the Surviving Company shall be a wholly-owned Subsidiary of Telecure;
(b) subject to the provisions of the Arrangement Agreement, articles of merger in substantially the form attached hereto as Exhibit A (the “Articles of Merger”) shall be duly executed by the Surviving Company and, on the Effective Date, subject the Articles of Merger shall be filed by the Surviving Company with the Florida Department of State pursuant to the terms and conditions all applicable provisions of the Arrangement AgreementFlorida Act;
(c) the consideration for the Merger shall be comprised of, in respect of each Company Share, the following shall occur as part of the Arrangement and shall be deemed to occur in the following order without any further act or formality:Consideration Shares;
(ad) each Nanotech Company Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereofShareholders in respect of which Appraisal Rights have been validly exercised shall, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined in the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereofthe applicable provisions of the Florida Act, subject be cancelled and converted into the right to applicable withholdings be paid fair value for such Company Shares as set out in Section 3.01 of the Plan of Arrangement in accordance with Section 4.4, such Dissenting Shareholder shall cease to be the holder of such Nanotech Shares and to have any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder applicable provisions of the Nanotech Shares so transferred and shall be deemed to be the legal owner of such Nanotech Shares Florida Act;
(free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders e) each outstanding Company Share other than the right Company Shares that are held by Dissenting Shareholders who have validly exercised their Appraisal Rights in accordance with the Florida Act and who are ultimately entitled to be paid the fair value for their Nanotech such Company Shares by Nanotech;
the Company (b) each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested“Consenting Shareholders”), shall, without any further action by or on behalf of any a holder thereof, be acquired for cancellation by Nanotech, free of Company Shares and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.4, and the name of such holder will be removed from the applicable register provisions of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately Florida Act, be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only converted into the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(b);
(c) each Out-of-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof Shares less amounts withheld and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money Options;
(d) each Nanotech RSU that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on the part of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Price, subject to applicable withholdings remitted in accordance with Section 4.44.02 of the Plan of Arrangement. In accordance with the applicable provisions of the Florida Act, and each such Nanotech RSU issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and the name holders of such holder will Company Shares shall cease to be removed from the applicable register holders thereof and to have any rights as holders of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall such Company Shares other than the rights to be terminated and the holder thereof shall thereafter have only the right to receive paid the Consideration to which such holder is entitled pursuant to this Section 2.2(d); andper Company Share in accordance with the Plan of Arrangement.
(ef) Telecure shall issue to each issued and outstanding Nanotech Share (other than Nanotech Consenting Shareholder the Consideration Shares held by META or an affiliate thereof or Dissenting Shareholders) held by a Nanotech Shareholder shall be transferred by the holder thereof, without any further action or formality on the part of the holder, free and clear of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Pricefor each Company Share, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on the Effective Date notwithstanding that certain Plan of the procedures related thereto may not be completed until after the Effective DateArrangement.
Appears in 1 contract
Sources: Arrangement Agreement
The Arrangement. Commencing at (a) Cardero and Coalhunter agree that the Effective Time on the Effective Date, Arrangement shall be implemented in accordance with and subject to the terms and conditions contained in this Agreement and the Plan of Arrangement.
(b) Coalhunter will, as soon as reasonably practicable, but in any event not later than April 21, 2011 or such other date as is agreed to by the parties, apply to the Court pursuant to Section 291 of the Arrangement AgreementBCBCA for an Interim Order providing, among other things:
(i) for the following shall occur as part class of persons to whom notice is to be provided in respect of the Arrangement and shall the Coalhunter Meeting and for the manner in which such notice is to be deemed to occur in the following order without any further act or formality:provided;
(aii) each Nanotech Share held that the requisite approval for the Coalhunter Resolutions will be: (A) 662/3 % of the votescast on the Coalhunter Resolutions by Coalhunter Shareholders, Coalhunter SpecialWarrant Holders and Coalhunter Option Holders, voting as a Dissenting Shareholder shall single class, present inperson or by proxy at the Coalhunter Meeting; and (B) a simple majority of the votes cast in person or by proxy on the Coalhunter Resolutions by Coalhunter Shareholders and, Coalhunter Special Warrant Holders, voting as a single class, other than Cardero, itsaffiliates or any other person whose vote would be deemed required to be transferred excluded underSection 8.1(2) of Multilateral Instrument 61-101 were it to apply to the Arrangement.
(iii) that in all other respects, the terms, conditions and restrictions of the Coalhunter constating documents, including quorum requirements and other matters, will apply in respect of the Coalhunter Meeting;
(iv) for the grant of Dissent Rights to the registered Coalhunter Shareholders;
(v) for notice requirements with respect to the presentation of the application to the Court for the Final Order;
(vi) that the Coalhunter Meeting may be adjourned from time to time by the holder thereof, without any further act or formality on its part, free and clear board of all Encumbrances (as such term is defined in the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereofdirectors of Coalhunter, subject to applicable withholdings in accordance with Section 4.4the terms of this Agreement, such Dissenting Shareholder shall cease without the need for additional approval of the Court; and
(vii) that the record date for Coalhunter Shareholders, Coalhunter Special Warrant Holders and Coalhunter Option Holders entitled to be the holder notice of such Nanotech Shares and to have vote at the Coalhunter Meeting will not change in respect of any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder adjournment(s) of the Nanotech Shares so transferred and shall be deemed to be the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by Nanotech;
(b) each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation by Nanotech, free and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.4, and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(b);Coalhunter Meeting.
(c) each Out-of-The-Money Option that is outstanding immediately prior Coalhunter will advise the Court of Cardero’s intention to rely upon the exemption under Section 3(a)(10) of the 1933 Act from the registration requirements of the 1933 Act to issue Cardero Shares to the Effective Time, whether or not vested, shall, without any further action on behalf of Coalhunter Shareholders pursuant to the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money Options;Arrangement.
(d) each Nanotech RSU that is outstanding immediately prior Coalhunter will convene and use commercially reasonable efforts to hold the Effective Time, whether or not vested, shall, without any further action on the part of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Price, subject to applicable withholdings Coalhunter Meeting in accordance with Section 4.4, and each such Nanotech RSU issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(d); andInterim Order.
(e) each issued and outstanding Nanotech Share Subject to obtaining (other than Nanotech Shares held by META or an affiliate thereof or Dissenting Shareholdersi) held by a Nanotech Shareholder shall be transferred the approvals as contemplated by the holder thereofInterim Order and as may be directed by the Court in the Interim Order, without and (ii) any further action Regulatory approvals and any other consents, approvals and notices required to proceed with the transactions contemplated by this Agreement and the Arrangement pursuant to the Plan of Arrangement, Coalhunter will, as soon as reasonably practicable thereafter, take all steps necessary to submit the Arrangement to the Court and apply for the Final Order.
(f) If the Final Order is obtained, subject to the satisfaction, waiver or formality release of the conditions set forth in Article 5 (as confirmed by each party to the other in writing), Coalhunter will, as soon as reasonably practicable thereafter, make any additional filings required under Sections 292 and 294 of the BCBCA.
(g) The Arrangement shall become effective at 12:01 a.m. (Vancouver time) on the part of the holderEffective Date, free and clear of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur or at such other time on the Effective Date notwithstanding that certain of as may be agreed to by the procedures related thereto may not be completed until after the Effective Dateparties hereto.
Appears in 1 contract
The Arrangement. Commencing at (a) Parent, Ltd2, Can Merger Sub, Tribute, US Merger Sub and Pozen agree that the Effective Time on the Effective Date, Arrangement will be implemented in accordance with and subject to the terms and conditions contained in this Agreement and the Plan of Arrangement.
(b) Registered Holders of Tribute Common Shares will be granted rights of dissent with respect to such shares in connection with the Arrangement pursuant to and in the manner set forth in Section 185 of the OBCA, as modified by the Plan of Arrangement (the “Tribute Dissent Rights”). Beneficial Holders of Tribute Common Shares and Holders of Tribute Options, Tribute Warrants and Tribute Compensation Options will not have rights of dissent with respect to such securities in connection with the Arrangement. Tribute shall give Pozen (i) prompt notice of any written demands with respect to Tribute Dissent Rights, withdrawals of such demands, and any other instruments served pursuant to the OBCA and received by Tribute, and (ii) the opportunity to participate in all negotiations and proceedings with respect to such rights. Without the prior written consent of Pozen, except as required by applicable law, Tribute shall not make any payment with respect to any such rights or offer to settle or settle any such rights.
(c) Tribute covenants in favor of Pozen that upon the terms and subject to the conditions of this Agreement, Tribute shall:
(i) Subject to Parent and Pozen complying with Section 2.4 in respect of those matters which may be completed prior to the application for the Interim Order, as soon as reasonably practicable after the execution of this Agreement, apply to the Canadian Court for the Interim Order in a manner and form acceptable to Pozen, acting reasonably, and thereafter proceed with such application and diligently pursue obtaining the Interim Order;
(ii) subject to obtaining such approvals as are required by the Interim Order, as soon as reasonably practicable after the Tribute Meeting and, in any event, not later than two (2) Business Days thereafter, apply to the Canadian Court pursuant to section 182(5) of the OBCA for the Final Order in a manner and form reasonably acceptable to Pozen and thereafter proceed with such application and diligently pursue obtaining the Final Order; and
(iii) subject to obtaining the Final Order and to the satisfaction or waiver (subject to applicable Laws) of each of the conditions set forth in ARTICLE 8 (excluding conditions that by their terms cannot be satisfied until the Arrangement Effective Date, but subject to the satisfaction or, when permitted, waiver of those conditions as of the Arrangement Effective Date), as soon as reasonably practicable thereafter, take all steps and actions including, if applicable, making all filings with Governmental Authorities (including NASDAQ, the TSXV and the TSX (if applicable)) necessary to give effect to the Arrangement and carry out the terms of the Plan of Arrangement applicable to it prior to the Outside Date.
(d) Subject to the terms of this Agreement, Pozen, the following shall occur Parent and any applicable Subsidiary of each will cooperate with, assist and consent to Tribute seeking the Interim Order and the Final Order and, subject to Tribute obtaining the Final Order and to the satisfaction or waiver (subject to applicable Laws) of each of the conditions set forth in ARTICLE 8 (excluding conditions that by their terms cannot be satisfied until the Arrangement Effective Date, but subject to the satisfaction or, when permitted, waiver of those conditions as part of the Arrangement Effective Date), as soon as reasonably practicable thereafter, take all steps and actions including, if applicable, making all filings with Governmental Authorities (including NASDAQ, the TSXV and the TSX (If applicable)) necessary to give effect to the Arrangement and carry out the terms of the Plan of Arrangement applicable to each of them prior to the Outside Date.
(e) The application referred to in Section 2.2(c)(i) shall, unless Tribute and Pozen otherwise agree, include a request that the Interim Order provide, among other things:
(i) for the class of Persons to whom notice is to be provided in respect of the Arrangement and shall the Tribute Meeting and for the manner in which such notice is to be deemed to occur in the following order without any further act or formality:provided;
(aii) each Nanotech Share held for the record date for the purposes of determining the Tribute Shareholders entitled to receive notice of and to vote at the Tribute Meeting;
(iii) that the Tribute Meeting may be adjourned or postponed from time to time by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined in the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable Tribute in accordance with Article 3 hereofthis Agreement without the need for any additional approval by the Court;
(iv) that the record date for the Tribute Shareholders entitled to receive notice of and to vote at the Tribute Meeting will not change in respect of or as a consequence of any adjournment or postponement of the Tribute Meeting;
(v) that the requisite and sole approval of the Arrangement Resolution will be the Tribute Shareholder Approval;
(vi) for the notice requirements with respect to the presentation of the application to the Court for the Final Order;
(vii) that proxies in respect of the Arrangement Resolution must be delivered to Tribute no later than forty-eight (48) hours (excluding Saturdays, Sundays and statutory holidays) prior to the date of the Tribute Meeting;
(viii) that, in all other respects, the terms, restrictions and conditions of the governing documents of Tribute, including quorum requirements and all other matters, shall apply in respect of the Tribute Meeting; and
(ix) subject to applicable withholdings in accordance with Section 4.4, the consent of Tribute (such Dissenting Shareholder shall cease consent not to be unreasonably withheld or delayed), Tribute shall also include a request that the holder Interim Order provide for such other matters as Pozen may reasonably require.
(f) Tribute shall advise the Canadian Court that the Parties intend to rely on the exemption from the registration requirements of such Nanotech the 1933 Securities Act provided by Section 3(a)(10) thereof to issue Parent Shares to Tribute Shareholders in exchange for their Tribute Common Shares and to have any rights exchange Tribute Options for Parent Options, as a holder of such Nanotech Sharesapplicable, all pursuant to the name of such Dissenting Shareholder shall be removed from Arrangement, based on the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder Canadian Court’s approval of the Nanotech Shares so transferred Arrangement.
(g) Tribute will provide legal counsel to Pozen with a reasonable opportunity to review and shall be deemed comment upon drafts of all materials to be filed with the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than Canadian Court in connection with the right to be paid the fair value for their Nanotech Shares by Nanotech;
(b) each In-The-Money Option that is outstanding immediately Arrangement prior to the Effective Timeservice and filing of such materials and will give reasonable consideration to such comments reasonably and promptly proposed by Pozen or its legal counsel. Tribute will ensure that all materials filed with the Canadian Court in connection with the Arrangement are consistent in all material respects with the terms of this Agreement and the Plan of Arrangement. Subject to applicable Laws, Tribute will not file any material with the Canadian Court in connection with the Arrangement or serve any such material, and will not agree to modify or amend materials so filed or served, except as contemplated by this Section, as required by applicable Law or stock exchange rule or with Pozen’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, provided, however, that nothing herein shall require Pozen or the Parent or any of their respective Subsidiaries to agree or consent to any increase in the consideration payable under the terms of the Plan of Arrangement or any modification or amendment to such filed or served materials that expands or increases the obligations of Pozen and its Subsidiaries set forth in any such filed or served materials or under this Agreement, the Merger or the Arrangement. In addition, Tribute will not object to legal counsel to Pozen making such submissions on the hearing of the application for the Interim Order and the application for the Final Order as such counsel considers appropriate, acting reasonably, provided that Tribute or its legal counsel is advised of the nature of any submissions prior to the hearing and such submissions are consistent with this Agreement and the Plan of Arrangement. Tribute will also provide legal counsel to Pozen on a timely basis with copies of any notice of appearance and evidence or other documents served on Tribute or its legal counsel in respect of the application for the Interim Order or the Final Order or any appeal therefrom and of any notice, whether or not vestedin writing, received by Tribute or its legal counsel indicating any intention to oppose the granting of the Interim Order or the Final Order or to appeal the Interim Order or the Final Order. Tribute will also oppose any proposal from any party that the Final Order contain any provision inconsistent with this Agreement.
(h) The Articles of Arrangement shall, without any further action on behalf with such other matters as are necessary to effect the Arrangement and subject to the provisions of any holder thereofthe Plan of Arrangement, consummate the Plan of Arrangement. On the Effective Date, the Articles of Arrangement shall be acquired for cancellation by Nanotechfiled with the Director. The Articles of Arrangement shall be in form satisfactory to Pozen and Tribute, free each acting reasonably.
(i) Upon the reasonable request from time to time of Pozen, Tribute will provide Pozen with lists (in both written and clear electronic form) of the registered Tribute Shareholders, together with their addresses and respective holdings of Tribute Common Shares, lists of the names and addresses and holdings of all EncumbrancesPersons having rights issued or granted by Tribute to acquire or otherwise related to Tribute Common Shares (including Tribute Optionholders , Tribute Warrantholders and Tribute Compensation Optionholders) and lists of non-objecting beneficial owners of Tribute Common Shares and participants in consideration book-based nominee registers (such as CDS & Co. and CEDE and Co.), together with their addresses and respective holdings of Tribute Common Shares. Tribute will from time to time require that its registrar and transfer agent furnish Pozen with such additional information, including updated or additional lists of Tribute Shareholders, information regarding beneficial ownership of Tribute Common Shares and lists of holdings and other assistance as Pozen may reasonably request.
(j) The Tribute Options, the Tribute Warrants, the Tribute Compensation Options and the Tribute Stock Option Plan shall be treated as contemplated by, and in the manner set forth in, the Plan of Arrangement.
(k) The Arrangement shall be structured and executed such that the issuance of the Parent Shares to Tribute Shareholders in exchange for a cash payment payable on behalf their Tribute Common Shares and the issuance of Nanotech equal Parent Options to Tribute Optionholders in exchange for their Tribute Options, all pursuant to the product obtained by multiplying Arrangement, will not require registration under the amount by which 1933 Securities Act in reliance upon Section 3(a)(10) thereof. Each of the Nanotech Share Price exceeds Parties agrees to act in good faith, consistent with the exercise price per Nanotech Share intent of such In-The-Money Option by the number Parties and the intended treatment of Nanotech Shares underlying such In-The-Money Optionthe Arrangement as set forth in this Section 2.2.
(l) Tribute and Pozen agree to cooperate in the preparation of presentations, if any, to Tribute Shareholders or other securityholders regarding the Arrangement, and Tribute agrees to consult with Pozen in connection with any communication or meeting with Tribute Shareholders or other securityholders that it may have, provided, however, that the foregoing shall be subject to Tribute’s overriding obligations to make any disclosure or filing required by applicable withholdings in accordance with Section 4.4Laws or stock exchange rules and, if Tribute is required to make any such disclosure, it shall use its commercially reasonable efforts to give Pozen a reasonable opportunity to review and comment thereon prior to its dissemination.
(m) Each of Tribute, Pozen, Parent, Can Merger Sub and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements related thereto Arrangement Exchange Agent (without duplication) shall be terminated entitled to deduct and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(b);
(c) each Out-of-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of the holder of such Out-Of-The-Money Option, be cancelled without payment of withhold from any consideration payable to any holder thereof of Tribute Common Shares, Tribute Options, Tribute Warrants or Tribute Compensation Optionholder, such amounts as Tribute, Pozen, Parent, Can Merger Sub or the Arrangement Exchange Agent are required to deduct and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability withhold with respect to such option agreements or Out-Of-The-Money Options;
(d) each Nanotech RSU payment under applicable Law. To the extent that is outstanding immediately prior amounts are so withheld, such withheld amounts shall be treated for all purposes hereunder as having been paid to the Effective Timeholder of Tribute Common Shares, whether Tribute Options, Tribute Warrants or not vestedTribute Compensation Options in respect of which such deduction and withholding was made, shall, without provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent that the amount so required or permitted to be deducted or withheld from any further action on payment to a holder exceeds the part cash component of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Priceholder, subject Tribute, Pozen, Parent, Can Merger Sub and the Arrangement Exchange Agent are hereby authorized to applicable withholdings in accordance with Section 4.4, and each sell or otherwise dispose of such Nanotech RSU issued and outstanding immediately prior portion of the consideration payable to the Effective Time holder as is necessary to provide sufficient funds to Tribute, Pozen, Parent, Can Merger Sub or the Arrangement Exchange Agent, as the case may be, to enable it to comply with such deduction or withholding requirement and Tribute, Pozen, Parent, Can Merger Sub or the Arrangement Exchange Agent shall thereafter immediately be cancelled and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and notify the holder thereof and remit the applicable portion of the net proceeds of such sale to the appropriate taxing authority, and shall thereafter have only the right remit to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(d); and
(e) each issued and outstanding Nanotech Share (other than Nanotech Shares held by META or an affiliate thereof or Dissenting Shareholders) held by a Nanotech Shareholder shall be transferred by the holder thereof, without any further action or formality on the part unapplied balance of the holder, free and clear proceeds of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on the Effective Date notwithstanding that certain of the procedures related thereto may not be completed until after the Effective Datesuch sale.
Appears in 1 contract
Sources: Merger Agreement (Tribute Pharmaceuticals Canada Inc.)
The Arrangement. Commencing at the Effective Time on the Effective Date, subject to the terms and conditions Section 2.1 Implementation Steps by NEWBRIDGE. NEWBRIDGE covenants in favour of the Arrangement Agreement, the following shall occur as part of the Arrangement and shall be deemed to occur in the following order without any further act or formalityALCATEL that NEWBRIDGE shall:
(a) each Nanotech Share held by subject to Section 2.5, as soon as reasonably practicable, apply in a Dissenting Shareholder shall be deemed manner acceptable to be transferred by ALCATEL, acting reasonably, under Section 192 of the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined in CBCA for an order approving the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay for the amount therefor determined and payable in accordance with Article 3 hereof, subject to applicable withholdings in accordance with Section 4.4, such Dissenting Shareholder shall cease to be the holder of such Nanotech Shares and to have any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech SharesInterim Order, and Nanotech shall be recorded as thereafter proceed with and diligently seek the registered holder of the Nanotech Shares so transferred and shall be deemed to be the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by NanotechInterim Order;
(b) each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation by Nanotech, free and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.42.5, convene and hold the name NEWBRIDGE Meeting for the purpose of such holder will considering the Arrangement Resolution (provided however that if there is another Acquisition Proposal to be removed from considered at the applicable register NEWBRIDGE Meeting, the order of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued presentation, signage, proxy forms and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements other matters related thereto shall be terminated and the holder thereof shall thereafter have only the right acceptable to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(bALCATEL, acting reasonably);
(c) each Out-of-The-Money Option that is outstanding immediately subject to Section 5.4(2), except as required for quorum purposes, not postpone or cancel (or propose for adjournment, postponement or cancellation) the NEWBRIDGE Meeting without ALCATEL's prior to written consent except as required by Laws or required by the Effective Time, whether or not vested, shall, without any further action on behalf of the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money OptionsNEWBRIDGE Shareholders;
(d) each Nanotech RSU at the request of ALCATEL, use commercially reasonable efforts to solicit from the NEWBRIDGE Shareholders proxies in favour of the approval of the Arrangement Resolution and to take all other action that is outstanding immediately prior necessary or desirable to secure the approval of the Arrangement Resolution by the NEWBRIDGE Shareholders, except to the Effective Time, whether or not vested, shall, without any further action on extent that the part Board of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Price, subject to applicable withholdings Directors has changed its recommendation in accordance with the terms of this Agreement (and subject in all cases to Section 4.46.4 hereof);
(e) subject to obtaining the approvals as are required by the Interim Order, proceed with and each such Nanotech RSU issued and outstanding immediately prior diligently pursue the application to the Effective Time shall thereafter immediately be cancelled Court for the Final Order;
(f) subject to obtaining the Final Order and the name satisfaction or waiver of the other conditions herein contained in favour of each party, send to the Director, for endorsement and filing by the Director, the Articles of Arrangement and such holder will other documents as may be removed from required in connection therewith under the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and CBCA to give effect to the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(d)Arrangement; and
(g) subject to obtaining the Final Order and the satisfaction or waiver of the other conditions herein contained in its favour, execute the Support Agreement and the Exchange Trust Agreement.
Section 2.2 Implementation Steps by ALCATEL. ALCATEL covenants in favour of NEWBRIDGE that ALCATEL shall:
(a) subject to Section 2.6, convene and hold the ALCATEL Meeting at the same time as its 2000 ordinary general meeting would otherwise have been held for the purpose of considering the ALCATEL Resolution (and for any other proper purpose as may be set out in the notice for such meeting), and such meeting shall be held on or before May 31, 2000;
(b) subject to Section 5.4(2), except as required for quorum purposes, not adjourn, postpone or cancel (or propose for adjournment, postponement or cancellation) the ALCATEL Meeting without NEWBRIDGE's prior written consent except as required by Laws or required by the ALCATEL Shareholders;
(c) subject to their fiduciary duties, ALCATEL directors and officers shall not make a negative recommendation in the ALCATEL Circular with respect to the ALCATEL Resolution;
(d) incorporate and organize Callco;
(e) each issued subject to obtaining the Final Order and outstanding Nanotech Share (other than Nanotech Shares held by META the satisfaction or an affiliate thereof or Dissenting Shareholders) held by a Nanotech Shareholder shall be transferred by the holder thereof, without any further action or formality on the part waiver of the holderother conditions herein contained in its favour, free ALCATEL shall (and clear of all Encumbrances, shall cause Callco to) execute and deliver the Support Agreement; and
(f) subject to Purchaser in exchange for a cash payment equal to obtaining the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on Final Order and the Effective Date notwithstanding that certain satisfaction or waiver of the procedures related thereto may not be completed until after other conditions herein contained in its favour, ALCATEL shall (and shall cause Callco to) execute and deliver the Effective DateExchange Trust Agreement.
Appears in 1 contract
The Arrangement. Commencing 3.1 Subject to the terms, conditions and covenants of this Agreement and the Plan of Arrangement, at the Effective Time, Gold Ridge and EKI will carry out the Plan of Arrangement in accordance with the provisions of the ABCA pursuant to which Gold Ridge and EKI will amalgamate and all outstanding Gold Ridge Shares and EKI Shares shall be exchanged for Amalco Shares, or Amalco Restricted Voting Shares which may be issuable to certain US residents, as applicable, in accordance with the exchange ratios set forth in the Plan of Arrangement. The Parties acknowledge the Arrangement will constitute Gold Ridge’s COB Transaction pursuant to the policies of the TSXV.
3.2 The Parties agree that the Arrangement will be structured so that all securities of Amalco issued on completion of the Arrangement will be issued in reliance on the exemption from the registration requirements of the U.S. Securities Act provided by Section 3(a)(10) of the U.S. Securities Act (the "Section 3(a)(10) Exemption"), and applicable securities laws of any state of the United States in reliance upon similar exemptions under applicable securities laws of any state of the United States. In order to ensure the availability of the Section 3(a)(10) Exemption, the Parties agree that the Arrangement will be carried out on the following basis:
(a) the Arrangement will be subject to the approval of the Court;
(b) the Court will be advised as to the intention of the Parties to rely on the Section 3(a)(10) Exemption prior to the hearing required to approve the Arrangement;
(c) the Court will be required to satisfy itself as to the procedural fairness of the Arrangement to shareholders effected by the Arrangement;
(d) the Parties will use commercially reasonable efforts to ensure that the Final Order approving the Arrangement that is obtained from the Court will expressly state that the Arrangement is approved by the Court as being fair to the Gold Ridge Shareholders and;
(e) each Gold Ridge Shareholder, Gold Ridge Optionholder and EKI Shareholder will be given adequate notice advising them of their right to attend the hearing of the Court to give approval of the Arrangement and providing them with sufficient information necessary for them to exercise that right;
(f) the Amalco Securities issued in the Arrangement have not been registered under the U.S. Securities Act and such securities will be issued in reliance on the exemption from the registration requirements of the U.S. Securities Act provided by Section 3(a)(10) of the U.S. Securities Act and exemptions under state securities laws and will be subject to certain restrictions on resale under the securities laws of the United States, including, as applicable, the unavailability of SEC Rule 144 under the U.S. Securities Act for resales of Amalco Securities within the United States;
(g) the Interim Order approving the Gold Ridge Meeting will specify that each Gold Ridge Shareholder, Gold Ridge Option holder and EKI Shareholder will have the right to appear before the Court and be heard at the hearing of the Court to consider approval of the Arrangement so long as they enter an appearance within a reasonable time; and
(h) the Final Order shall include a statement to substantially the following effect:
3.3 Subject to the terms and conditions of this Agreement, Gold Ridge and EKI shall take all actions necessary in accordance with all Applicable Laws to facilitate the Arrangement, including:
(a) filing an application for the Interim Order providing for, among other things, the calling and holding of the Gold Ridge Meeting and the EKI Meeting for the purpose of considering and, if deemed advisable, approving the Arrangement and any related matters to be considered at such shareholder meeting and, upon receipt of the Interim Order, forthwith carry out the terms thereof to the extent applicable to Gold Ridge;
(b) provided all necessary approvals for the Arrangement are obtained from the Gold Ridge Shareholders and EKI Shareholders, Gold Ridge and EKI shall submit the Arrangement to the Court and apply for the Final Order; and
(c) upon issuance of the Final Order and subject to the closing conditions in Article 6, Article 7 and Article 8, each of Gold Ridge and EKI shall execute and deliver such closing documents and instruments and forthwith proceed to file any necessary documents, including the Final Order as may be required to give effect to the Arrangement with the Registrar pursuant to Section 193(9) of the ABCA, whereupon the transactions comprising the Plan of Arrangement shall occur and shall be deemed to have occurred as at the Effective Time in the order set out therein without any further act or formality.
3.4 The Arrangement shall become effective at the Effective Time on the Effective Date. The Parties shall use their reasonable commercial efforts to cause the Effective Date to occur on or before October 31, subject 2015, or as soon thereafter as reasonably practicable and in any event by the Completion Deadline.
3.5 The Arrangement is intended to qualify as a reorganization within the meaning of Section 368(a) of the Code and this Agreement is intended to be a "plan of reorganization" within the meaning of the regulations promulgated under Section 368 of the Code. Each Party, to the terms and conditions extent it is required to make any filings in the United States, agrees to treat the Arrangement as a reorganization within the meaning of Section 368(a) of the Arrangement AgreementCode for all U.S. federal income tax purposes, and agrees to treat this Agreement as a "plan of reorganization" within the following shall occur as part meaning of the Arrangement regulations promulgated under Section 368 of the Code, and shall be deemed to occur not take any position on any tax return filed in the following order without United States or otherwise take any further act or formality:
(aTax reporting position inconsistent with such treatment, unless otherwise required by Applicable Law. In addition, each Party shall use its commercially reasonable efforts to cause the transactions contemplated by this Agreement to qualify as a "reorganization" within the meaning of Section 368(a) each Nanotech Share held by of the Code and will use commercially reasonable efforts to avoid taking any action that would cause the reorganization not to qualify as a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined in the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereof, subject to applicable withholdings reorganization in accordance with Section 4.4, such Dissenting Shareholder shall cease to be the holder of such Nanotech Shares and to have any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder 368(a) of the Nanotech Shares so transferred Code. Notwithstanding any representations and covenants set forth in this Agreement, it is understood and agreed that neither Gold Ridge nor EKI shall be deemed provide any assurances to be the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by Nanotech;
(b) each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation by Nanotech, free and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.4, and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(b);
(c) each Out-of-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf holders of the holder Amalco Securities regarding the United States federal income tax consequences of such Out-Of-The-Money Option, be cancelled without payment of any consideration the Arrangement to any holder thereof and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money Options;
(d) each Nanotech RSU that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on the part of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Price, subject to applicable withholdings in accordance with Section 4.4, and each such Nanotech RSU issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(d); and
(e) each issued and outstanding Nanotech Share (other than Nanotech Shares held by META or an affiliate thereof or Dissenting Shareholders) held by a Nanotech Shareholder shall be transferred by the holder thereof, without any further action or formality on the part of the holder, free and clear of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on the Effective Date notwithstanding that certain of the procedures related thereto may not be completed until after the Effective Dateholders.
Appears in 1 contract
Sources: Arrangement Agreement
The Arrangement. Commencing at (a) Cardero and Coalhunter agree that the Effective Time on the Effective Date, Arrangement shall be implemented in accordance with and subject to the terms and conditions contained in this Agreement and the Plan of Arrangement.
(b) Coalhunter will, as soon as reasonably practicable, but in any event not later than April 21, 2011 or such other date as is agreed to by the parties, apply to the Court pursuant to Section 291 of the Arrangement AgreementBCBCA for an Interim Order providing, among other things:
(i) for the following shall occur as part class of persons to whom notice is to be provided in respect of the Arrangement and shall the Coalhunter Meeting and for the manner in which such notice is to be deemed to occur in the following order without any further act or formality:provided;
(aii) each Nanotech Share held that the requisite approval for the Coalhunter Resolutions will be: (A) 662 / % of the votes 3 cast on the Coalhunter Resolutions by Coalhunter Shareholders, Coalhunter Special Warrant Holders and Coalhunter Option Holders, voting as a Dissenting Shareholder shall single class, present in person or by proxy at the Coalhunter Meeting; and (B) a simple majority of the votes cast in person or by proxy on the Coalhunter Resolutions by Coalhunter Shareholders and, Coalhunter Special Warrant Holders, voting as a single class, other than Cardero, its affiliates or any other person whose vote would be deemed required to be transferred excluded under Section 8.1(2) of Multilateral Instrument 61-101 were it to apply to the Arrangement;
(iii) that in all other respects, the terms, conditions and restrictions of the Coalhunter constating documents, including quorum requirements and other matters, will apply in respect of the Coalhunter Meeting;
(iv) for the grant of Dissent Rights to the registered Coalhunter Shareholders;
(v) for notice requirements with respect to the presentation of the application to the Court for the Final Order;
(vi) that the Coalhunter Meeting may be adjourned from time to time by the holder thereof, without any further act or formality on its part, free and clear board of all Encumbrances (as such term is defined in the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereofdirectors of Coalhunter, subject to applicable withholdings in accordance with Section 4.4the terms of this Agreement, such Dissenting Shareholder shall cease without the need for additional approval of the Court; and
(vii) that the record date for Coalhunter Shareholders, Coalhunter Special Warrant Holders and Coalhunter Option Holders entitled to be the holder notice of such Nanotech Shares and to have vote at the Coalhunter Meeting will not change in respect of any rights as a holder of such Nanotech Shares, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder adjournment(s) of the Nanotech Shares so transferred and shall be deemed to be the legal owner of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by Nanotech;
(b) each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation by Nanotech, free and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.4, and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(b);Coalhunter Meeting.
(c) each Out-of-The-Money Option that is outstanding immediately prior Coalhunter will advise the Court of Cardero’s intention to rely upon the exemption under Section 3(a)(10) of the 1933 Act from the registration requirements of the 1933 Act to issue Cardero Shares to the Effective Time, whether or not vested, shall, without any further action on behalf of Coalhunter Shareholders pursuant to the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money Options;Arrangement.
(d) each Nanotech RSU that is outstanding immediately prior Coalhunter will convene and use commercially reasonable efforts to hold the Effective Time, whether or not vested, shall, without any further action on the part of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal to the Nanotech Share Price, subject to applicable withholdings Coalhunter Meeting in accordance with Section 4.4, and each such Nanotech RSU issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(d); andInterim Order.
(e) each issued and outstanding Nanotech Share Subject to obtaining (other than Nanotech Shares held by META or an affiliate thereof or Dissenting Shareholdersi) held by a Nanotech Shareholder shall be transferred the approvals as contemplated by the holder thereofInterim Order and as may be directed by the Court in the Interim Order, without and (ii) any further action Regulatory approvals and any other consents, approvals and notices required to proceed with the transactions contemplated by this Agreement and the Arrangement pursuant to the Plan of Arrangement, Coalhunter will, as soon as reasonably practicable thereafter, take all steps necessary to submit the Arrangement to the Court and apply for the Final Order.
(f) If the Final Order is obtained, subject to the satisfaction, waiver or formality release of the conditions set forth in Article 5 (as confirmed by each party to the other in writing), Coalhunter will, as soon as reasonably practicable thereafter, make any additional filings required under Sections 292 and 294 of the BCBCA.
(g) The Arrangement shall become effective at 12:01 a.m. (Vancouver time) on the part of the holderEffective Date, free and clear of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur or at such other time on the Effective Date notwithstanding that certain of as may be agreed to by the procedures related thereto may not be completed until after the Effective Dateparties hereto.
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The Arrangement. Commencing at the Effective Time on the Effective Date, subject to the terms and conditions of the Arrangement Agreement, the following shall occur as part of the Arrangement and shall be deemed to occur in the following order without any further act or formality:2.1 Implementation Steps by TMB
(a) each Nanotech Share held by a Dissenting Shareholder shall be deemed to be transferred by as soon as reasonable practicable following the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances (as such term is defined in the Arrangement Agreement), to Nanotech and Nanotech shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 date hereof, subject apply in a manner acceptable to applicable withholdings in accordance with Section 4.4Parent, such Dissenting Shareholder shall cease to be the holder of such Nanotech Shares and to have any rights as a holder of such Nanotech Sharesacting reasonably, the name of such Dissenting Shareholder shall be removed from the central securities register of Nanotech as a holder of Nanotech Shares, and Nanotech shall be recorded as the registered holder under section 182 of the Nanotech Shares so transferred OBCA for and shall be deemed to be diligently seek the legal owner Interim Order governing the calling and conduct of such Nanotech Shares (free and clear of all Encumbrances), which Nanotech Shares shall thereupon be cancelled and such Dissenting Shareholders will cease to have any rights as Nanotech Shareholders other than the right to be paid the fair value for their Nanotech Shares by NanotechTMB Meeting;
(b) each In-The-Money Option that is outstanding immediately prior to the Effective Time, whether or not vested, shall, without any further action on behalf of any holder thereof, be acquired for cancellation by Nanotech, free and clear of all Encumbrances, in consideration for a cash payment payable on behalf of Nanotech equal to the product obtained by multiplying the amount by which the Nanotech Share Price exceeds the exercise price per Nanotech Share of such In-The-Money Option by the number of Nanotech Shares underlying such In-The-Money Option, subject to applicable withholdings in accordance with Section 4.4section 2.4, lawfully convene and hold the TMB Meeting for the purpose of considering the Arrangement Resolution (and for no other purpose unless agreed to by Parent) as soon as reasonably practicable, and in any event, on or before the name of such holder will Meeting Date subject to adjournments or postponements which may be removed from the applicable register of Nanotech as a holder of Nanotech Options. Each In-The-Money Option issued and outstanding immediately prior to the Effective Time shall thereafter immediately be cancelled and all option agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled required pursuant to this Section 2.2(bsection 4.5(a);
(c) each Out-of-The-Money Option that is outstanding immediately prior subject to obtaining the approvals as are required by the Interim Order, as soon as reasonably practicable after the TMB Meeting, proceed with the application to the Effective Time, whether or not vested, shall, without any further action on behalf of Court for and diligently seek the holder of such Out-Of-The-Money Option, be cancelled without payment of any consideration to any holder thereof and all option agreements related thereto shall be terminated and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech Options and none of Nanotech, META and Purchaser shall have any liability with respect to such option agreements or Out-Of-The-Money OptionsFinal Order;
(d) subject to obtaining the Final Order and the satisfaction or waiver of the other conditions herein contained in favour of each Nanotech RSU that is outstanding immediately party, as soon as reasonably practicable, take all steps and actions, including sending to the Director, for endorsement and filing by the Director, the Articles of Arrangement and such other documents as may be required in connection therewith under the OBCA, and including making all other necessary filings with Governmental Entities to give effect to the Arrangement prior to the Effective TimeDrop Dead Date;
(e) instruct counsel acting for it to bring the applications and make the filings referred to in sections 2.1(a), whether 2.1(c) and 2.1(d) in co-operation with counsel to Parent;
(f) in connection with the Court applications referred to herein, permit Parent and its counsel to review and comment, such review and comment to be completed in a timely fashion, upon drafts of all material to be filed by TMB with the Court in connection with the Arrangement, including the Circular and any supplement or not vested, shall, without amendment contemplated by section 2.6(c) and provide counsel to TMB on a timely basis with copies of any further action notice of appearance and evidence served on TMB or its counsel in respect of application for the part Interim Order and the Final Order or any appeal therefrom and of any notice (written or oral) received by TMB indicating any intention to oppose the granting of the holder thereof, be acquired for cancellation by Nanotech free and clear of all Encumbrances in consideration for a cash payment payable on behalf of Nanotech equal Interim Order or the Final Order or to appeal the Nanotech Share Price, subject to applicable withholdings in accordance with Section 4.4, and each such Nanotech RSU issued and outstanding immediately prior to Interim Order or the Effective Time shall thereafter immediately be cancelled and the name of such holder will be removed from the applicable register of Nanotech as a holder of Nanotech RSUs and all Nanotech RSU agreements related thereto shall be terminated and the holder thereof shall thereafter have only the right to receive the Consideration to which such holder is entitled pursuant to this Section 2.2(d)Final Order; and
(eg) each issued not file any material with the Court in connection with the Arrangement or serve any such material, and outstanding Nanotech Share (other than Nanotech Shares held by META not agree to modify or an affiliate thereof amend materials so filed or Dissenting Shareholders) held by a Nanotech Shareholder shall served, except as contemplated hereby or with the prior written consent of Parent, such consent not to be transferred by the holder thereof, without any further action unreasonably withheld or formality on the part of the holder, free and clear of all Encumbrances, to Purchaser in exchange for a cash payment equal to the Nanotech Share Price, in accordance with Section 4.1 less any amounts withheld in accordance with Section 4.4. The events provided for in this Section 2.2 will be deemed to occur on the Effective Date notwithstanding that certain of the procedures related thereto may not be completed until after the Effective Datedelayed.
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Sources: Merger Agreement (Luminex Corp)