The Business Combination. 2.1 Fireswirl, West Pacific and ▇▇▇▇▇▇ hereby agree that the Original Agreement is terminated pursuant to Section 10.1 of the Original Agreement. 2.2 Fireswirl, West Pacific and Subco hereby agree that, as soon as reasonably commercially practicable after the date hereof or at such other time as is specifically indicated below in this Section 2.2, and subject to the terms and conditions of this Agreement, it shall take the following steps indicated for each such Party: (a) at the Closing Time, West Pacific and Subco shall amalgamate pursuant to the BCBCA and continue as one corporation, Amalco, and Fireswirl shall issue the Consideration Shares required to be issued in connection with the Amalgamation, upon the terms and subject to the conditions contained in this Agreement and the Amalgamation Agreement; (b) West Pacific and Subco shall jointly file with the Registrar the Amalgamation Application and such other documents as may be required to effect the Amalgamation, under which West Pacific and Subco will amalgamate and continue as Amalco, and under the Amalgamation, at the Closing Time: (i) each West Pacific Share outstanding and held by a West Pacific Shareholder and ▇▇▇▇▇▇ immediately prior to the Closing Time will be cancelled and extinguished and converted automatically into the right to receive a Consideration Share (provided that, for greater certainty, ▇▇▇▇▇▇ is entitled to receive 19.9% of the issued and outstanding shares of the Resulting Issuer on a post-Private Placement basis); (ii) the outstanding Subco Shares will be cancelled and replaced by Amalco Shares on the basis of one Amalco Share for each outstanding Subco Share; (iii) as consideration for the issue of the Consideration Shares, Amalco will issue to Fireswirl one Amalco Share for each Consideration Share issued to holders of West Pacific Shares; (iv) Fireswirl shall add to the stated capital maintained in respect of the Fireswirl Shares an amount equal to the aggregate paid-up capital for purposes of the Tax Act of the West Pacific Shares immediately prior to the Closing Time; (v) Amalco shall add to the stated capital maintained in respect of the Amalco Shares an amount such that the stated capital of the Amalco Shares shall be equal to the aggregate paid-up capital for purposes of the Tax Act of the Subco Shares and West Pacific Shares immediately prior to the Closing Time; (vi) the separate corporate existence of West Pacific and Subco will cease, and the resulting company of the Amalgamation, Amalco, will continue as a wholly-owned subsidiary of Fireswirl; and (vii) all of the property, rights, privileges and franchises of each of West Pacific and Subco will be the property, rights, privileges and franchises of Amalco and Amalco will be subject to all of the liabilities, including civil, criminal and quasi-criminal, and all contracts, debts and obligations of each of West Pacific and Subco; (c) at the Closing Time, Fireswirl will provide its transfer agent an irrevocable direction to issue the number of Consideration Shares issuable to West Pacific Shareholders and ▇▇▇▇▇▇ pursuant to the Amalgamation in accordance with this Agreement; (d) subject to Sections 2.3 to 2.6, as soon as practicable after the Closing Time, Fireswirl will cause its registrar and transfer agent to deliver to each West Pacific Shareholder and ▇▇▇▇▇▇ a direct registration statement or share certificate representing the number of Consideration Shares to which they are so entitled pursuant to Section 2.2(a); and (e) the Parties hereto shall take any other action and do anything, including the execution of any agreements, documents or instruments, that are necessary, desirable or useful to give effect to the Amalgamation, provided that nothing in this Agreement shall prevent or limit the ability of the directors of each of Fireswirl, West Pacific and Subco to fulfill their fiduciary or statutory duties. 2.3 No fractional Consideration Shares will be issued in connection with the Amalgamation, and no direct registration statement or share certificate for any such fractional shares will be issued. Where the number of Consideration Shares to be issued under this Agreement would result in a fraction of a Consideration Share being issuable, the number of Consideration Shares to be received by such former West Pacific Shareholder or ▇▇▇▇▇▇ shall be rounded down to the nearest whole number of Consideration Shares and no consideration in lieu of any fractional Consideration Share shall be paid. 2.4 Fireswirl and Amalco will be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of West Pacific Shares pursuant to this Agreement such amounts as Fireswirl or Amalco may be required to deduct or withhold therefrom under any provision of provincial, local or foreign tax law, if any. To the extent such amounts are so deducted or withheld, such amounts will be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. 2.5 Neither Fireswirl nor Amalco will be liable to any holder or former holder of West Pacific Shares for any Consideration Shares (or dividends or distributions with respect thereto), or for any cash amounts, delivered to any Governmental Authority pursuant to any applicable abandoned property, escheat or similar law. 2.6 From and after the Closing Time, no West Pacific Shares will be deemed to be outstanding, and holders of share certificates that immediately prior to the Closing Time represented West Pacific Shares exchanged for Consideration Shares pursuant to Section 2.2 of this Agreement will cease to have any rights with respect thereto, except as provided herein or by law. 2.7 Unless this Agreement is terminated pursuant to the provisions hereof, the Transaction will be completed on the date that is five (5) Business Days after the Parties have satisfied or waived all of the conditions set out in Section 7 of this Agreement (other than such conditions which by their nature are to be satisfied at the Closing), or at such earlier or later date as Fireswirl and West Pacific may agree (the “Closing Date”). 2.8 The Parties agree that the form of the Amalgamation Agreement that Fireswirl, West Pacific and Subco are required to enter into pursuant to the BCBCA in order to effect the Amalgamation is attached hereto as Schedule “C”. West Pacific and Subco shall, subject to the terms and conditions of this Agreement and the Amalgamation Agreement and subject to the satisfaction or waiver of the conditions set out in Section 7 of this Agreement, deliver to Fireswirl the executed Amalgamation Application and related documents which will be filed by Fireswirl with the Registrar. 2.9 The Parties shall cooperate in the preparation of all applications for regulatory approvals and the preparation of any other documents and taking of all actions reasonably deemed by Fireswirl or West Pacific, as the case may be, to be necessary to discharge its respective obligations under Applicable Laws in connection with each step of the Amalgamation and all other matters contemplated by this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
The Business Combination. 2.1 FireswirlBusiness Combination Steps
(a) Light AI will, West Pacific and ▇if required:
(i) duly convene the Light AI Meeting at which the Light AI Shareholders will be asked to approve the Amalgamation (or in the alternative, obtain approval for the Amalgamation by consent resolution of the Light AI Shareholders); and
(ii) use all commercially reasonable efforts to obtain the approval of the Light AI Shareholders for the Amalgamation;
(b) Finco will, if required:
(i) duly convene the ▇▇▇▇▇ hereby agree that Meeting at which the Original Agreement is terminated ▇▇▇▇▇ Shareholders will be asked to approve the Amalgamation (or in the alternative, obtain approval for the Amalgamation by consent resolution of the ▇▇▇▇▇ Shareholders); and
(ii) use all commercially reasonable efforts to obtain the approval of the Finco Shareholders for the Amalgamation;
(c) Acquiror will, prior to the Effective Date, seek approval of Acquiror Shareholders for the Amalgamation, if required pursuant to Section 10.1 the policies of Cboe;
(d) The Amalgamating Parties will amalgamate by way of statutory amalgamation under the provisions of the Original Agreement.
2.2 Fireswirl, West Pacific and Subco hereby agree that, as soon as reasonably commercially practicable after the date hereof or at such other time as is specifically indicated below in this Section 2.2, and subject to BCBCA on the terms and conditions contained in the Documents, and each of this Agreementthe Amalgamating Parties further agree that the Effective Date will occur within five (5) Business Days following the satisfaction or waiver of the conditions herein contained in favour of each Party or such other date as may be mutually agreed upon;
(e) the Parties will cause the Amalgamation Application to be filed to effect the Amalgamation, it shall take the following steps indicated for each such Partypursuant to which:
(ai) at the Closing Time, West Pacific and Subco shall Amalgamating Parties will amalgamate pursuant to under the provisions of the BCBCA and continue as one amalgamated corporation, being Amalco, and Fireswirl shall issue the Consideration Shares required to be issued in connection with the Amalgamation, upon the terms and subject to the conditions contained in this Agreement and the Amalgamation Agreement;
(bii) West Pacific subject to Section 2.1(f), holders of outstanding Light AI Shares will receive 3.89 Acquiror Shares for each Light AI Share (the “Light AI Exchange Ratio”) held and Subco shall jointly file with the Registrar the Amalgamation Application and such other documents as may Light AI Shares will be required to effect the Amalgamation, under which West Pacific and Subco will amalgamate and continue as Amalco, and under the Amalgamation, at the Closing Time:cancelled;
(iiii) each West Pacific Share subject to Section 2.1(f), holders of outstanding and held by a West Pacific Shareholder and ▇▇▇▇▇▇ immediately prior to the Closing Time Shares will be cancelled and extinguished and converted automatically into the right to receive a Consideration one Acquiror Share (provided that, for greater certainty, ▇each ▇▇▇▇▇ is entitled to receive 19.9% of Share (the issued “▇▇▇▇▇ Exchange Ratio”) held and outstanding shares of the Resulting Issuer on a post-Private Placement basis)▇▇▇▇▇ Shares will be cancelled;
(iiiv) Acquiror Warrants will be issued to the holders of the Light AI Warrants, in exchange and replacement for, and on an equivalent basis after giving effect to the Light AI Exchange Ratio, such Light AI Warrants, which will thereby be cancelled;
(v) Acquiror Options will be issued to the holders of the Light AI Options, in exchange and replacement for, and on an equivalent basis after giving effect to the Light AI Exchange Ratio, such Light AI Options, which will thereby be cancelled;
(vi) Acquiror Warrants will be issued to the holders of the ▇▇▇▇▇ Warrants, in exchange and replacement for, and on an equivalent basis after giving effect to the ▇▇▇▇▇ Exchange Ratio, such ▇▇▇▇▇ Warrants, which will thereby be cancelled;
(vii) Acquiror Options will be issued to the holders of the ▇▇▇▇▇ Options, in exchange and replacement for, and on an equivalent basis after giving effect to the ▇▇▇▇▇ Exchange Ratio, such ▇▇▇▇▇ Options, which will thereby be cancelled;
(viii) each outstanding Subco Shares Share will be cancelled and replaced by exchanged for Amalco Shares on the basis of one (1) Amalco Share for each outstanding Subco Share;
(iiiix) as consideration for the issue issuance of Acquiror Shares to the Consideration Sharesholders of Light AI Shares and to the holders of ▇▇▇▇▇ Shares to effect the Amalgamation, Amalco will issue to Fireswirl Acquiror one (1) fully paid Amalco Share for each Consideration Acquiror Share issued to holders of West Pacific Sharesso issued;
(iv) Fireswirl shall add to the stated capital maintained in respect of the Fireswirl Shares an amount equal to the aggregate paid-up capital for purposes of the Tax Act of the West Pacific Shares immediately prior to the Closing Time;
(v) Amalco shall add to the stated capital maintained in respect of the Amalco Shares an amount such that the stated capital of the Amalco Shares shall be equal to the aggregate paid-up capital for purposes of the Tax Act of the Subco Shares and West Pacific Shares immediately prior to the Closing Time;
(vi) the separate corporate existence of West Pacific and Subco will cease, and the resulting company of the Amalgamation, Amalco, will continue as a wholly-owned subsidiary of Fireswirl; and
(viix) all of the property, rights, privileges property and franchises assets of each of West Pacific and Subco the Amalgamating Parties will be the property, rights, privileges property and franchises assets of Amalco and Amalco will be subject to liable for all of the liabilities, including civil, criminal and quasi-criminal, and all contracts, debts liabilities and obligations of each of West Pacific and Subcothe Amalgamating Parties; and
(xi) Amalco will be a wholly-owned Subsidiary of Acquiror;
(cf) at the Closing Timein accordance with Section 7.5, Fireswirl will provide its transfer agent an irrevocable direction to issue the number of Consideration Light AI Shares issuable to West Pacific Shareholders and ▇or ▇▇▇▇▇ pursuant Shares which are held by a Dissenting Shareholder will not be converted as prescribed by Section 2.1(e)(ii) or Section 2.1(e)(iii). However, if a Dissenting Shareholder fails to perfect or effectively withdraws its claim, or forfeits its right to make a claim, under Division 2 of Part 8 of the Amalgamation in accordance with this AgreementBCBCA or if its rights as a Light AI Shareholder or a ▇▇▇▇▇ Shareholder are otherwise reinstated, such Dissenting Shareholder’s Dissenting Shares will thereupon be deemed to have been converted as of the Effective Date as prescribed by Section 2.1(e)(ii) or Section 2.1(e)(iii);
(dg) subject immediately following the filing of the Amalgamation Application to Sections 2.3 effect the Amalgamation, Acquiror will file a Form 11 – Notice of Alternation to 2.6, give effect to the Acquiror Name Change;
(h) as soon as practicable after the Closing TimeEffective Date, Fireswirl in accordance with normal commercial practice and Section 2.4(i), Acquiror will issue or cause its registrar to be issued certificates, DRS Statements or an electronic position within CDS representing the appropriate number of Acquiror Shares to the former Light AI Shareholders. No fractional Acquiror Shares will be delivered to any Light AI Shareholder otherwise entitled thereto and transfer agent to deliver to each West Pacific Shareholder and ▇▇▇▇▇▇ a direct registration statement or share certificate representing instead the number of Consideration Acquiror Shares to which they are so entitled pursuant be issued to Section 2.2(a)each former Light AI Shareholder will be rounded down to the nearest whole number; and
(ei) the Parties hereto shall will take any other action and do anything, including the execution of any other agreements, documents or instruments, that are necessary, desirable is necessary or useful to give effect to the Amalgamation, provided that nothing in this Agreement shall prevent or limit the ability of the directors of each of Fireswirl, West Pacific and Subco to fulfill their fiduciary or statutory dutiesBusiness Combination.
2.3 No fractional Consideration Shares will be issued in connection with the Amalgamation, and no direct registration statement or share certificate for any such fractional shares will be issued. Where the number of Consideration Shares to be issued under this Agreement would result in a fraction of a Consideration Share being issuable, the number of Consideration Shares to be received by such former West Pacific Shareholder or ▇▇▇▇▇▇ shall be rounded down to the nearest whole number of Consideration Shares and no consideration in lieu of any fractional Consideration Share shall be paid.
2.4 Fireswirl and Amalco will be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of West Pacific Shares pursuant to this Agreement such amounts as Fireswirl or Amalco may be required to deduct or withhold therefrom under any provision of provincial, local or foreign tax law, if any. To the extent such amounts are so deducted or withheld, such amounts will be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
2.5 Neither Fireswirl nor Amalco will be liable to any holder or former holder of West Pacific Shares for any Consideration Shares (or dividends or distributions with respect thereto), or for any cash amounts, delivered to any Governmental Authority pursuant to any applicable abandoned property, escheat or similar law.
2.6 From and after the Closing Time, no West Pacific Shares will be deemed to be outstanding, and holders of share certificates that immediately prior to the Closing Time represented West Pacific Shares exchanged for Consideration Shares pursuant to Section 2.2 of this Agreement will cease to have any rights with respect thereto, except as provided herein or by law.
2.7 Unless this Agreement is terminated pursuant to the provisions hereof, the Transaction will be completed on the date that is five (5) Business Days after the Parties have satisfied or waived all of the conditions set out in Section 7 of this Agreement (other than such conditions which by their nature are to be satisfied at the Closing), or at such earlier or later date as Fireswirl and West Pacific may agree (the “Closing Date”).
2.8 The Parties agree that the form of the Amalgamation Agreement that Fireswirl, West Pacific and Subco are required to enter into pursuant to the BCBCA in order to effect the Amalgamation is attached hereto as Schedule “C”. West Pacific and Subco shall, subject to the terms and conditions of this Agreement and the Amalgamation Agreement and subject to the satisfaction or waiver of the conditions set out in Section 7 of this Agreement, deliver to Fireswirl the executed Amalgamation Application and related documents which will be filed by Fireswirl with the Registrar.
2.9 The Parties shall cooperate in the preparation of all applications for regulatory approvals and the preparation of any other documents and taking of all actions reasonably deemed by Fireswirl or West Pacific, as the case may be, to be necessary to discharge its respective obligations under Applicable Laws in connection with each step of the Amalgamation and all other matters contemplated by this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement