Payment of the Consideration. (a) Prior to the filing of the Articles of Arrangement, the Acquiror shall deposit, for the benefit of the holders of Common Shares (other than Dissenting Shareholders) and Warrants (other than Dissenting Warrantholders), as applicable, sufficient cash to pay (i) the aggregate Consideration payable to holders of Common Shares (other than Dissenting Shareholders) pursuant to Section 2.3(e), and (ii) the aggregate Consideration payable to holders of Warrants (other than Dissenting Warrantholders) pursuant to Section 2.3(c). (b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Common Shares transferred pursuant to Section 2.3(e), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(e), less any amounts withheld pursuant to Section 4.3, and any share certificate so surrendered shall forthwith be cancelled. Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Warrants transferred pursuant to Section 2.3(c), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(c), less any amounts withheld pursuant to Section 4.3, and any warrant certificate so surrendered shall forthwith be cancelled. (c) On the day following the Effective Date, the Corporation shall pay the amounts to be paid to holders of Options either (i) pursuant to the normal payroll practices and procedures of the Corporation, or (ii) in the event that payment pursuant to the normal payroll practices and procedures of the Corporation is not practicable for any such holder, by cheque (delivered to such holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of the Options), less any amounts withheld pursuant to Section 4.3. The Acquiror shall advance by way of a demand, non-interest bearing loan to the Corporation on the Effective Date by wire transfer in immediately available funds an amount, not exceeding the aggregate of the amounts to be so paid to the holders of Options and the amounts to be so withheld, as requested by the Corporation to the Acquiror by notice in writing given not less than three (3) Business Days prior to the Effective Date. (d) Pursuant to Section 2.3(e), each certificate that immediately prior to the Effective Time represented Common Shares shall be deemed as of and from the time specified in Section 2.3(e) to represent only the right to receive upon surrender of such certificate the Consideration, without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Pursuant to Section 2.3(c), each certificate that immediately prior to the Effective Time represented Warrants shall be deemed as of and from the time specified in Section 2.3(c) to represent only the right to receive upon surrender of such certificate the Consideration under Section 2.3(c), without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Any such certificate formerly representing Common Shares or Warrants, as applicable, not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Common Shares or Warrants, as applicable, of any kind or nature against the Corporation, the Acquiror or the Parent. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered to the Acquiror and all Consideration to which such former holder was entitled shall be returned to the Acquiror. (e) Any payment made by way of cheque by the Depositary or the Corporation pursuant to this Plan of Arrangement that has not been deposited or has been returned to the Depositary or the Corporation, as the case may be, or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature and the right of the holder to receive the Consideration for Common Shares, Options or Warrants pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited for no consideration, and all cash to which such holder was entitled shall be returned to the Acquiror or the Corporation, as applicable. (f) No holder of Common Shares, Options or Warrants shall be entitled to receive any consideration with respect to Common Shares, Options or Warrants other than as described in and in accordance with Section 2.3 and this Section 4.1, and, for greater certainty, no such holder will be entitled to receive any interest (by reason of any delay in paying for such securities or otherwise), dividends, premium or other payment in connection therewith.
Appears in 1 contract
Payment of the Consideration. Acquirer shall obtain the Loan, and the remainder of the Consideration shall be paid to the Contributors in the following manner:
(a) Prior Acquirer shall pay to Contributors the sum of Seven Million Seven Hundred Fifty Thousand Dollars ($7,750,000.00) in the form of LP Units, the number of such LP Units determined at the rate of an LP Unit price per unit of Nine and Approximately 94/100 Dollars ($9.94118). Contributors shall be restricted from converting or selling such LP Units for a period of one (1) year from the Closing Date.
(b) Acquirer shall pay to Contributors the remainder of the Consideration in the form of immediately available good funds of lawful money of the United States.
(c) Any adjustments and prorations to be made pursuant to the filing terms of this Agreement shall be paid by wire transfer of immediately available funds to an account specified by the party due to receive same.
(d) Notwithstanding the foregoing, no LP Units shall be issued by the Acquirer, and following such issuance no LP Units shall be transferred by any Contributor to, any person or entity that is not an accredited investor within the meaning of Regulation D promulgated by the United States Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), and to the extent any such non-accredited person or entity is entitled to receive any portion of the Articles Consideration, such portion shall be paid in cash rather than LP Units and the number of ArrangementLP Units issuable in payment of the Consideration shall be reduced accordingly. Each Contributor agrees to take such actions as Acquirer may reasonably request in order to assure that the issuance of any LP Units pursuant to this Agreement complies with the requirements of the Securities Act and Regulation D promulgated thereunder. Except as otherwise expressly set forth in this Agreement, the Acquiror Contributors acknowledge and agree that once the Closing occurs, the Contributors shall depositno longer hold any right, for title or interest in the benefit Property (except through its ownership of the holders of Common Shares Acquirer). Contributors hereby direct Acquirer to pay, issue and distribute (other than Dissenting Shareholders) and Warrants (other than Dissenting Warrantholders), as applicable, sufficient cash ) the Consideration on the Closing Date to pay the Contributors in such amounts set forth in this Agreement. The Contributors that acquire LP Units acknowledge that any certificates evidencing the LP Units will bear appropriate legends indicating (i) that the aggregate Consideration payable to holders of Common Shares (other than Dissenting Shareholders) pursuant to Section 2.3(e)LP Units have not been registered under the Securities Act, and (ii) that Acquirer’s Limited Partnership Agreement (the aggregate Consideration payable to holders “Acquirer’s Limited Partnership Agreement”) restricts the transfer of Warrants the LP Units. Each Contributor shall upon receipt of the LP Units at Closing become a limited partner of Acquirer by executing the form of joinder (other than Dissenting Warrantholdersthe “Joinder”) pursuant to Section 2.3(c).
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to Acquirer’s Limited Partnership Agreement attached hereto as Exhibit J and deliver the Effective Time represented outstanding Common Shares transferred pursuant to Section 2.3(e), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(e), less any amounts withheld pursuant to Section 4.3, and any share certificate so surrendered shall forthwith be cancelled. Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Warrants transferred pursuant to Section 2.3(c), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(c), less any amounts withheld pursuant to Section 4.3, and any warrant certificate so surrendered shall forthwith be cancelled.
(c) On the day following the Effective Date, the Corporation shall pay the amounts to be paid to holders of Options either (i) Joinder at closing pursuant to the normal payroll practices and procedures terms of Section 6.2 hereof; provided, however, that if any Contributor is presently a limited partner of the CorporationAcquirer, or (ii) in such Contributor shall not be required to execute and deliver the event that payment pursuant to Joinder. By executing and delivering the normal payroll practices and procedures of the Corporation is not practicable for any such holder, by cheque (delivered to such holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of the Options), less any amounts withheld pursuant to Section 4.3. The Acquiror shall advance by way of a demand, non-interest bearing loan to the Corporation on the Effective Date by wire transfer in immediately available funds an amount, not exceeding the aggregate of the amounts to be so paid to the holders of Options and the amounts to be so withheld, as requested by the Corporation to the Acquiror by notice in writing given not less than three (3) Business Days prior to the Effective Date.
(d) Pursuant to Section 2.3(e), each certificate that immediately prior to the Effective Time represented Common Shares shall be deemed as of and from the time specified in Section 2.3(e) to represent only the right to receive upon surrender of such certificate the Consideration, without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Pursuant to Section 2.3(c), each certificate that immediately prior to the Effective Time represented Warrants shall be deemed as of and from the time specified in Section 2.3(c) to represent only the right to receive upon surrender of such certificate the Consideration under Section 2.3(c), without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Any such certificate formerly representing Common Shares or Warrants, as applicable, not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Common Shares or Warrants, as applicable, of any kind or nature against the Corporation, the Acquiror or the Parent. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered to the Acquiror and all Consideration to which such former holder was entitled shall be returned to the Acquiror.
(e) Any payment made by way of cheque by the Depositary or the Corporation pursuant to this Plan of Arrangement that has not been deposited or has been returned to the Depositary or the Corporation, as the case may be, or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature and the right of the holder to receive the Consideration for Common Shares, Options or Warrants pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited for no consideration, and all cash to which such holder was entitled shall be returned to the Acquiror or the Corporation, as applicable.
(f) No holder of Common Shares, Options or Warrants shall be entitled to receive any consideration with respect to Common Shares, Options or Warrants other than as described in and Joinder in accordance with Section 2.3 and this Section 4.1the terms hereof, and, for greater certainty, no such holder each Contributor acknowledges that it will be entitled to receive any interest (bound by reason the terms and provisions of any delay in paying for such securities or otherwise), dividends, premium or other payment in connection therewiththe Acquirer’s Limited Partnership Agreement.
Appears in 1 contract
Payment of the Consideration. Acquirer shall pay the Consideration to the Contributors in the following manner:
(a) Prior Acquirer shall pay to Contributors Five Hundred Seventy Four Thousand Three Hundred and Six (574,306) LP Units, the price of such LP Units to be determined on the Closing Date. Contributors shall be restricted from converting or selling such LP Units for a period of one (1) year from the Closing Date.
(b) At Closing, the Existing Mortgage shall be assumed or modified by Acquirer, and the Property Owner shall remain the borrower. Any adjustments and prorations to be made pursuant to the filing terms of this Agreement shall be paid by wire transfer of immediately available funds to an account specified by the party due to receive same.
(c) Notwithstanding the foregoing, no LP Units shall be issued by the Acquirer, and following such issuance no LP Units shall be transferred by any Contributor to, any person or entity that is not an accredited investor within the meaning of Regulation D promulgated by the United States Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), and to the extent any such non-accredited person or entity is entitled to receive any portion of the Articles Consideration, such portion shall be paid in cash rather than LP Units and the number of ArrangementLP Units issuable in payment of the Consideration shall be reduced accordingly. Each Contributor agrees to take such actions as Acquirer may reasonably request in order to assure that the issuance of any LP Units pursuant to this Agreement complies with the requirements of the Securities Act and Regulation D promulgated thereunder. Except as otherwise expressly set forth in this Agreement, the Acquiror Contributors acknowledge and agree that once the Closing occurs, the Contributors shall depositno longer hold any right, for title or interest in the benefit Property Owner (except through its ownership of the holders of Common Shares Acquirer). Contributors hereby direct Acquirer to pay, issue and distribute (other than Dissenting Shareholders) and Warrants (other than Dissenting Warrantholders), as applicable, sufficient cash ) the Consideration on the Closing Date to pay the Contributors in such amounts set forth in this Agreement. The Contributors that acquire LP Units acknowledge that any certificates evidencing the LP Units will bear appropriate legends indicating (i) that the aggregate Consideration payable to holders of Common Shares (other than Dissenting Shareholders) pursuant to Section 2.3(e)LP Units have not been registered under the Securities Act, and (ii) that Acquirer’s Limited Partnership Agreement (the aggregate Consideration payable to holders “Acquirer’s Limited Partnership Agreement”, attached hereto as Exhibit K) restricts the transfer of Warrants the LP Units. Each Contributor shall upon receipt of the LP Units at Closing become a limited partner of Acquirer by executing the form of joinder (other than Dissenting Warrantholdersthe “Joinder”, attached hereto as Exhibit J) pursuant to Section 2.3(c).
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to Acquirer’s Limited Partnership Agreement and deliver the Effective Time represented outstanding Common Shares transferred pursuant to Section 2.3(e), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(e), less any amounts withheld pursuant to Section 4.3, and any share certificate so surrendered shall forthwith be cancelled. Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Warrants transferred pursuant to Section 2.3(c), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(c), less any amounts withheld pursuant to Section 4.3, and any warrant certificate so surrendered shall forthwith be cancelled.
(c) On the day following the Effective Date, the Corporation shall pay the amounts to be paid to holders of Options either (i) Joinder at closing pursuant to the normal payroll practices and procedures terms of Section 6.2 hereof; provided, however, that if any Contributor is presently a limited partner of the CorporationAcquirer, or (ii) in such Contributor shall not be required to execute and deliver the event that payment pursuant to Joinder. By executing and delivering the normal payroll practices and procedures of the Corporation is not practicable for any such holder, by cheque (delivered to such holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of the Options), less any amounts withheld pursuant to Section 4.3. The Acquiror shall advance by way of a demand, non-interest bearing loan to the Corporation on the Effective Date by wire transfer in immediately available funds an amount, not exceeding the aggregate of the amounts to be so paid to the holders of Options and the amounts to be so withheld, as requested by the Corporation to the Acquiror by notice in writing given not less than three (3) Business Days prior to the Effective Date.
(d) Pursuant to Section 2.3(e), each certificate that immediately prior to the Effective Time represented Common Shares shall be deemed as of and from the time specified in Section 2.3(e) to represent only the right to receive upon surrender of such certificate the Consideration, without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Pursuant to Section 2.3(c), each certificate that immediately prior to the Effective Time represented Warrants shall be deemed as of and from the time specified in Section 2.3(c) to represent only the right to receive upon surrender of such certificate the Consideration under Section 2.3(c), without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Any such certificate formerly representing Common Shares or Warrants, as applicable, not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Common Shares or Warrants, as applicable, of any kind or nature against the Corporation, the Acquiror or the Parent. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered to the Acquiror and all Consideration to which such former holder was entitled shall be returned to the Acquiror.
(e) Any payment made by way of cheque by the Depositary or the Corporation pursuant to this Plan of Arrangement that has not been deposited or has been returned to the Depositary or the Corporation, as the case may be, or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature and the right of the holder to receive the Consideration for Common Shares, Options or Warrants pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited for no consideration, and all cash to which such holder was entitled shall be returned to the Acquiror or the Corporation, as applicable.
(f) No holder of Common Shares, Options or Warrants shall be entitled to receive any consideration with respect to Common Shares, Options or Warrants other than as described in and Joinder in accordance with Section 2.3 and this Section 4.1the terms hereof, and, for greater certainty, no such holder each Contributor acknowledges that it will be entitled to receive any interest (bound by reason the terms and provisions of any delay in paying for such securities or otherwise), dividends, premium or other payment in connection therewiththe Acquirer’s Limited Partnership Agreement.
Appears in 1 contract
Payment of the Consideration. 3.2.1. On the Completion Date the Purchaser shall pay the Initial Consideration as follows:
(a) Prior ninety-five (95) per cent (%) of the amount corresponding to the filing Initial Consideration less the Strike Portion shall be paid in immediately available funds by wire transfer to the Pivot Bank Account;
(b) the Strike Portion shall be paid in immediately available funds by wire transfer to the bank account of the Articles Company, in the amount notified by the Sellers’ Representative in the Pre-Completion Statement;
(c) five (5) per cent (%) of Arrangementthe Initial Consideration (the “Escrow Amount”) to the “Séquestre Juridique de l’Ordre des Avocats du Barreau de Paris”, as an escrow agent (the “Escrow Agent”), to be held in accordance with the terms and conditions of an escrow agreement to be entered into on the Completion Date by and among the Purchaser, the Acquiror Sellers Representative and the Escrow Agent, in a form to be agreed in good faith between the Sellers and the Purchaser (the “Escrow Agreement”).
3.2.2. The Escrow Amount shall depositbe held as security for fulfillment of the Sellers’ obligations under this Agreement (whether obligations of payment, obligations relating to the representations and warranties and/or fulfillment of covenants contained in the Agreement). The Escrow Amount shall be held as security for the benefit repayment obligations of the holders of Common Shares Sellers under Clause 11 (other than Dissenting Shareholders) and Warrants (other than Dissenting WarrantholdersRefund by the Sellers), as applicable, sufficient cash follows:
(a) the Purchaser and the Sellers Representative may at any time address a joint notice to pay the Escrow Agent to release all or part of the Escrow Amount in a form attached as exhibit to the Escrow Agreement;
(b) fifty percent (50 %) of (i) the aggregate Consideration payable to holders of Common Shares (other than Dissenting Shareholders) pursuant to Section 2.3(e)Escrow Amount, and less (ii) the aggregate Consideration payable to holders amount of Warrants any claim(s) against the Sellers that the Purchaser has raised as at the first anniversary date of the Completion Date in accordance with the terms and conditions of Clause 11 (other than Dissenting WarrantholdersRefund by the Sellers) pursuant to Section 2.3(c).
(band which is(are) Upon surrender unsettled as of such date, shall be released to the Depositary for cancellation Pivot Bank Account on the first anniversary of a certificate which immediately prior to the Effective Time represented outstanding Common Shares transferred pursuant to Section 2.3(e), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(e), less any amounts withheld pursuant to Section 4.3, and any share certificate so surrendered shall forthwith be cancelled. Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Warrants transferred pursuant to Section 2.3(c), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(c), less any amounts withheld pursuant to Section 4.3, and any warrant certificate so surrendered shall forthwith be cancelled.Completion Date;
(c) On upon the day following second anniversary date of the Effective Completion Date (the “Final Release Date”), the Corporation remaining balance of the Escrow Amount at that date shall pay the amounts to automatically be paid to holders of Options either (i) pursuant released to the normal payroll practices and procedures of the Corporation, or (ii) in the event that payment pursuant to the normal payroll practices and procedures of the Corporation is not practicable for any such holder, by cheque (delivered to such holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of the Options), less any amounts withheld pursuant to Section 4.3. The Acquiror shall advance by way of a demand, non-interest bearing loan to the Corporation on the Effective Date by wire transfer in immediately available funds an amount, not exceeding the aggregate of the amounts to be so paid to the holders of Options and the amounts to be so withheld, as requested by the Corporation to the Acquiror by notice in writing given not less than three (3) Business Days prior to the Effective Date.Pivot Bank Account;
(d) Pursuant as an exception to Section 2.3(e)subparagraph (c) above and in accordance with the provisions of the Escrow Agreement, each certificate that immediately if one or more claims have been duly notified by the Purchaser to the Sellers Representative in accordance with the terms of Clause 11 (Refund by the Sellers) prior to the Effective Time represented Common Shares Final Release Date, the Purchaser and the Sellers Representative shall address a joint notice to the Escrow Agent instructing the Escrow Agent to continue to hold an amount corresponding to such claims, in accordance with the provisions of the Escrow Agreement.
3.2.3. No later than five (5) Business Days following the date on which the Final Completion Statement is finally determined in accordance with the provisions of Schedule 3.2 (Completion Statement), if the Final Consideration exceeds the Initial Consideration, then the Purchaser shall pay to the Pivot Bank Account an amount equal to such excess.
3.2.4. If the Initial Consideration exceeds the Final Consideration, the amount equal to such excess shall be deemed as of and from the time specified in Section 2.3(e) to represent only the right to receive upon surrender of such certificate the Consideration, without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Pursuant to Section 2.3(c), each certificate that immediately prior to the Effective Time represented Warrants shall be deemed as of and from the time specified in Section 2.3(c) to represent only the right to receive upon surrender of such certificate the Consideration under Section 2.3(c), without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Any such certificate formerly representing Common Shares or Warrants, as applicable, not duly surrendered on or before the sixth anniversary first paid out of the Effective Date shall cease to represent a claim by or interest of any former holder of Common Shares or Warrants, as applicable, of any kind or nature against the Corporation, the Acquiror or the Parent. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered to the Acquiror and all Consideration to which such former holder was entitled shall be returned to the Acquiror.
(e) Any payment made Escrow Amount by way of cheque by debt set off (compensation de créances) and the Depositary or remaining balance (if any) shall be paid out of the Corporation Earn-Out amounts (if any), in accordance with Clause 3.1.2 of this Agreement.
3.2.5. The Parties agree that any payment to be made pursuant to this Plan Clause 3 may be reduced by the Purchaser by, or offset by the Purchaser against, the amount of Arrangement any Claim made by the Purchaser against the Sellers pursuant to Clause 11 (Refund by the Seller) that has not been deposited or has been returned become final, due and payable pursuant to the Depositary or terms of this Agreement.
3.2.6. Subject to the Corporationpayment which shall be made to the Escrow Agent, any payment required to be made by the Purchaser under this Clause 3.2 shall be made on the Pivot Bank Account. As soon as the Purchaser will have paid the Initial Consideration and, as the case may be, the Earn-Outs (as may be adjusted pursuant to Clause 3.1.2) on the Pivot Bank Account, the Purchaser will have satisfied with all its payment obligations to the Sellers in respect of, respectively, the Initial Consideration and the Earn-Outs. The Sellers shall be responsible for the sub-sequent allocation of each Seller’s Respective Portion and release the Purchaser from any liability in this respect. The Purchaser shall not be concerned with, or that otherwise remains unclaimedhave any liability whatsoever with respect to, in each case, on or before the sixth anniversary allocation of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature Consideration and the right of Earn-Outs among the holder to receive the Consideration for Common Shares, Options or Warrants pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited for no consideration, and all cash to which such holder was entitled shall be returned to the Acquiror or the Corporation, as applicableSellers.
(f) No holder of Common Shares, Options or Warrants shall be entitled to receive any consideration with respect to Common Shares, Options or Warrants other than as described in and in accordance with Section 2.3 and this Section 4.1, and, for greater certainty, no such holder will be entitled to receive any interest (by reason of any delay in paying for such securities or otherwise), dividends, premium or other payment in connection therewith.
Appears in 1 contract
Payment of the Consideration. The Consideration shall be paid to the Contributor in the following manner:
(a) Prior The Acquiror shall receive a credit against the Consideration in an amount equal to the filing outstanding balance (principal, interest, fees and the like), as of the Articles Closing Date, of Arrangementthe Existing Financing encumbering the Property as such balance is evidenced by a letter from the lender, which loan the Acquiror shall take subject to or, at Acquiror’s option, assume.
(b) Acquiror has made a deposit of $7,000,000.00 (the “Deposit”) into an interest-bearing escrow account, which account bears interest at a rate of 8% per annum. The Deposit shall be refundable to Acquiror until the Closing. In the event Closing occurs, Acquiror shall receive a credit against the Consideration in an amount equal to the Deposit.
(c) At Closing, the Acquiror shall depositpay the balance of the Consideration, as adjusted by the prorations pursuant to Section 6.5 hereof (the “Closing Balance”), in the form of lawful money of the United States and in LP Units of Acquiror. Approximately $6,000,000.00 of the Closing Balance plus an amount equal to the sum of all expenses incurred by the Contributors related to the transactions contemplated by this Agreement, shall be paid to Contributors in the form of LP Units, which, for the benefit purposes of this Agreement, shall be deemed to have a per LP Unit value equal to $9.12 per share for the common shares of beneficial interest of Hersha Hospitality Trust, a Maryland real estate investment trust ("Hersha").
(d) Notwithstanding the foregoing, no LP Units shall be issued by the Acquiror, and following such issuance no LP Units shall be transferred by the Contributor to, any person or entity that is not an accredited investor within the meaning of Regulation D promulgated by the United States Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), and to the extent any such non-accredited person or entity is entitled to receive any portion of the holders Consideration, such portion shall be paid in cash rather than LP Units and the number of Common Shares LP Units issuable in payment of the Consideration shall be reduced accordingly. The Contributor agrees to take such actions as Acquiror may reasonably request in order to assure that the issuance of any LP Units pursuant to this Agreement complies with the requirements of the Securities Act and Regulation D promulgated thereunder. Except as otherwise expressly set forth in this Agreement, the Contributor acknowledges and agrees that once the Closing occurs, the Contributor shall no longer hold any right, title or interest in the Property (other than Dissenting Shareholders) except through its ownership of Acquiror). Contributor hereby directs Acquiror to pay, issue and Warrants distribute (other than Dissenting Warrantholders), as applicable) the Consideration on the Closing Date to the Contributors in such amounts set forth in an amendment to this Agreement mutually agreed on by the parties prior to Closing. No fractional LP Units will be issued as Consideration hereunder, sufficient cash to pay but in lieu of issuing fractional LP Units, the value thereof shall be paid in cash. The Contributors that acquire LP Units acknowledge that any certificates evidencing the LP Units will bear appropriate legends indicating (i) that the aggregate Consideration payable to holders of Common Shares (other than Dissenting Shareholders) pursuant to Section 2.3(e)LP Units have not been registered under the Securities Act, and (ii) that Acquiror’s Limited Partnership Agreement (the aggregate Consideration payable to holders “Acquiror’s Limited Partnership Agreement”) restricts the transfer of Warrants the LP Units. Each Contributor that receives LP Units shall upon receipt of the LP Units at Closing become a limited partner of Acquiror by executing the form of joinder (other than Dissenting Warrantholdersthe “Joinder”) pursuant to Section 2.3(c).
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to Acquiror’s Limited Partnership Agreement attached hereto as Exhibit J and deliver the Effective Time represented outstanding Common Shares transferred pursuant to Section 2.3(e), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(e), less any amounts withheld pursuant to Section 4.3, and any share certificate so surrendered shall forthwith be cancelled. Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Warrants transferred pursuant to Section 2.3(c), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(c), less any amounts withheld pursuant to Section 4.3, and any warrant certificate so surrendered shall forthwith be cancelled.
(c) On the day following the Effective Date, the Corporation shall pay the amounts to be paid to holders of Options either (i) Joinder at closing pursuant to the normal payroll practices and procedures terms of Section 6.2 hereof; provided, however, that any Contributor that is presently a limited partner of the Corporation, or (ii) in the event that payment pursuant to the normal payroll practices and procedures of the Corporation is not practicable for any such holder, by cheque (delivered to such holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of the Options), less any amounts withheld pursuant to Section 4.3. The Acquiror shall advance by way of a demand, non-interest bearing loan not be required to execute and deliver the Corporation on Joinder. By executing and delivering the Effective Date by wire transfer in immediately available funds an amount, not exceeding the aggregate of the amounts to be so paid to the holders of Options and the amounts to be so withheld, as requested by the Corporation to the Acquiror by notice in writing given not less than three (3) Business Days prior to the Effective Date.
(d) Pursuant to Section 2.3(e), each certificate that immediately prior to the Effective Time represented Common Shares shall be deemed as of and from the time specified in Section 2.3(e) to represent only the right to receive upon surrender of such certificate the Consideration, without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Pursuant to Section 2.3(c), each certificate that immediately prior to the Effective Time represented Warrants shall be deemed as of and from the time specified in Section 2.3(c) to represent only the right to receive upon surrender of such certificate the Consideration under Section 2.3(c), without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Any such certificate formerly representing Common Shares or Warrants, as applicable, not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Common Shares or Warrants, as applicable, of any kind or nature against the Corporation, the Acquiror or the Parent. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered to the Acquiror and all Consideration to which such former holder was entitled shall be returned to the Acquiror.
(e) Any payment made by way of cheque by the Depositary or the Corporation pursuant to this Plan of Arrangement that has not been deposited or has been returned to the Depositary or the Corporation, as the case may be, or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature and the right of the holder to receive the Consideration for Common Shares, Options or Warrants pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited for no consideration, and all cash to which such holder was entitled shall be returned to the Acquiror or the Corporation, as applicable.
(f) No holder of Common Shares, Options or Warrants shall be entitled to receive any consideration with respect to Common Shares, Options or Warrants other than as described in and Joinder in accordance with Section 2.3 and this Section 4.1, and, for greater certainty, no such holder the terms hereof each Contributor acknowledges that it will be entitled to receive any interest (bound by reason the terms and provisions of any delay in paying for such securities or otherwise), dividends, premium or other payment in connection therewiththe Acquiror’s Limited Partnership Agreement.
Appears in 1 contract
Payment of the Consideration. (a) Prior to the filing of the Articles of Arrangement, Arrangement the Acquiror Purchaser shall deposit, deposit or cause to be deposited (in a manner acceptable to the Depositary):
(i) for the benefit of the holders of Common Shares (other than Dissenting Shareholders) Shares, Options, Private Placement Warrants and Warrants (other than Dissenting Warrantholders)Debentures, as applicablecash with the Depositary in an aggregate amount equal to the payments in respect thereof required by the Plan of Arrangement, sufficient cash with the amount per Common Share in respect of which Dissent Rights have been exercised being deemed to pay (i) be the aggregate Common Share Cash Consideration payable or per applicable share for this purpose, net of applicable withholdings for the benefit of such holders, it being understood that under no circumstances will interest be paid by the Purchaser or the Depositary to holders depositing Common Shares, holders of Options, Warrant Holders or Debenture Holders, by reason of any delay in paying for any Common Shares (other than Dissenting Shareholders) pursuant to Section 2.3(e)Shares, and Options, Private Placement Warrants, Debentures or otherwise; and
(ii) cash with the Depositary in an aggregate Consideration payable amount equal to holders of Warrants (other than Dissenting Warrantholders) pursuant to Section 2.3(c)the Pre- Authorized Expenses.
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding (i) the Debentures repaid and cancelled pursuant to Section 3.1(c); and (ii) the Common Shares transferred pursuant to Section 2.3(e3.1(e), as applicable, together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration cash payment which such holder has the right to receive under Section 2.3(e3.1(c) or 3.1(e), as applicable, for the Common Shares or Debentures, less any amounts withheld pursuant to Section 4.35.3, and any share certificate so surrendered shall forthwith be cancelled. Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Warrants transferred pursuant to Section 2.3(c), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(c), less any amounts withheld pursuant to Section 4.3, and any warrant certificate so surrendered shall forthwith be cancelled.
(c) On the day following the Effective Date, the Corporation shall pay the amounts to be paid to holders of Options either (i) pursuant to the normal payroll practices and procedures of the Corporation, or (ii) in the event that payment pursuant to the normal payroll practices and procedures of the Corporation is not practicable for any such holder, Until surrendered as contemplated by cheque (delivered to such holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of the Options), less any amounts withheld pursuant to this Section 4.3. The Acquiror shall advance by way of a demand, non-interest bearing loan to the Corporation on the Effective Date by wire transfer in immediately available funds an amount, not exceeding the aggregate of the amounts to be so paid to the holders of Options and the amounts to be so withheld, as requested by the Corporation to the Acquiror by notice in writing given not less than three (3) Business Days prior to the Effective Date.
(d) Pursuant to Section 2.3(e)5.1, each certificate that immediately prior to the Effective Time represented Debentures or Common Shares shall be deemed as of and from after the time specified in Section 2.3(e) Effective Time to represent only the right to receive upon such surrender of such certificate the Considerationa cash payment, without interest, in lieu of such certificate as contemplated in this Section 4.15.1, less any amounts withheld pursuant to Section 4.3. Pursuant to Section 2.3(c), each certificate that immediately prior to the Effective Time represented Warrants shall be deemed as of and from the time specified in Section 2.3(c) to represent only the right to receive upon surrender of such certificate the Consideration under Section 2.3(c), without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.35.3. Any such certificate formerly representing Common Shares or Warrants, as applicable, Debentures not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Common Shares or Warrants, as applicable, Debentures of any kind or nature against the Corporation, the Acquiror Corporation or the ParentPurchaser. On such date, all Consideration cash to which such former holder was entitled shall be deemed to have been surrendered to the Acquiror Purchaser and all Consideration cash to which such former holder was entitled shall be returned to the AcquirorPurchaser.
(d) As soon as practicable following the Effective Date, the Depositary shall deliver to each holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of Options, a cheque representing the cash payment, without interest, if any, which such holder of Options is entitled to receive pursuant to Section 3.1(d), less any amounts required to be withheld pursuant to Section 5.3.
(e) As soon as practicable following the Effective Date, the Depositary shall deliver to each holder of Private Placement Warrants as reflected on the register maintained by or on behalf of the Corporation in respect of Private Placement Warrants, a cheque representing the cash payment, without interest, if any, which such holder of Private Placement Warrants is entitled to receive pursuant to Section 3.1(e), less any amounts required to be withheld pursuant to Section 5.3.
(f) Any payment made by way of cheque by the Depositary or the Corporation pursuant to this the Plan of Arrangement that has not been deposited or has been returned to the Depositary or the Corporation, as the case may be, or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature and the right of the holder to receive the Consideration consideration for Common Shares, Debentures, Private Placement Warrants or Options or Warrants pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited for no consideration, and all cash to which such holder was entitled shall be returned to the Acquiror Purchaser or the Corporation, as applicable.
(fg) No holder of Common Shares, Options or Warrants Securityholder shall be entitled to receive any consideration with respect to Common Shares, Debentures, Private Placement Warrants or Options or Warrants other than as described in and any cash payment to which such holder is entitled to receive in accordance with Section 2.3 3.1 and this Section 4.1, 5.1 and, for greater certainty, no such holder will be entitled to receive any interest (by reason of any delay in paying for such securities or otherwise)interest, dividends, premium or other payment in connection therewith, other than any declared but unpaid dividends.
Appears in 1 contract
Payment of the Consideration. The Consideration shall be paid to the Contributor in the following manner:
(a) Prior Acquirer shall pay to Contributor the Consideration in LP Units. If Closing occurs after September 30, 2007, Acquirer shall additionally pay to Contributor the Contingent Consideration, also in LP Units.
(b) Any adjustments and prorations to be made pursuant to the filing terms of this Agreement shall be paid by wire transfer of immediately available funds to an account specified by the party due to receive same.
(c) Notwithstanding the foregoing, no LP Units shall be issued by the Acquirer, and following such issuance no LP Units shall be transferred by the Contributor to, any person or entity that is not an accredited investor within the meaning of Regulation D promulgated by the United States Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), and to the extent any such non-accredited person or entity is entitled to receive any portion of the Articles Consideration, such portion shall be paid in cash rather than LP Units and the number of ArrangementLP Units issuable in payment of the Consideration shall be reduced accordingly. The Contributor agrees to take such actions as Acquirer may reasonably request in order to assure that the issuance of any LP Units pursuant to this Agreement complies with the requirements of the Securities Act and Regulation D promulgated thereunder. Except as otherwise expressly set forth in this Agreement, the Acquiror Contributor acknowledges and agrees that once the Closing occurs, the Contributor shall depositno longer hold any right, for title or interest in the benefit Property (except through its ownership of the holders of Common Shares Acquirer). Contributor hereby directs Acquirer to pay, issue and distribute (other than Dissenting Shareholders) and Warrants (other than Dissenting Warrantholders), as applicable, sufficient cash ) the Consideration on the Closing Date to pay the Contributor in such amounts set forth in this Agreement. The Contributor that acquires LP Units acknowledges that any certificates evidencing the LP Units will bear appropriate legends indicating (i) that the aggregate Consideration payable to holders of Common Shares (other than Dissenting Shareholders) pursuant to Section 2.3(e)LP Units have not been registered under the Securities Act, and (ii) that Acquirer’s Limited Partnership Agreement (the aggregate Consideration payable to holders “Acquirer’s Limited Partnership Agreement”) restricts the transfer of Warrants the LP Units. The Contributor shall upon receipt of the LP Units at Closing become a limited partner of Acquirer by executing the form of joinder (other than Dissenting Warrantholdersthe “Joinder”) pursuant to Section 2.3(c).
(b) Upon surrender to the Depositary for cancellation of a certificate which immediately prior to Acquirer’s Limited Partnership Agreement attached hereto as Exhibit J and deliver the Effective Time represented outstanding Common Shares transferred pursuant to Section 2.3(e), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(e), less any amounts withheld pursuant to Section 4.3, and any share certificate so surrendered shall forthwith be cancelled. Upon surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Warrants transferred pursuant to Section 2.3(c), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder thereof shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, the aggregate Consideration which such holder has the right to receive under Section 2.3(c), less any amounts withheld pursuant to Section 4.3, and any warrant certificate so surrendered shall forthwith be cancelled.
(c) On the day following the Effective Date, the Corporation shall pay the amounts to be paid to holders of Options either (i) Joinder at closing pursuant to the normal payroll practices and procedures terms of Section 6.2 hereof; provided, however, that if Contributor is presently a limited partner of the CorporationAcquirer, or (ii) in Contributor shall not be required to execute and deliver the event that payment pursuant to Joinder. By executing and delivering the normal payroll practices and procedures of the Corporation is not practicable for any such holder, by cheque (delivered to such holder of Options as reflected on the register maintained by or on behalf of the Corporation in respect of the Options), less any amounts withheld pursuant to Section 4.3. The Acquiror shall advance by way of a demand, non-interest bearing loan to the Corporation on the Effective Date by wire transfer in immediately available funds an amount, not exceeding the aggregate of the amounts to be so paid to the holders of Options and the amounts to be so withheld, as requested by the Corporation to the Acquiror by notice in writing given not less than three (3) Business Days prior to the Effective Date.
(d) Pursuant to Section 2.3(e), each certificate that immediately prior to the Effective Time represented Common Shares shall be deemed as of and from the time specified in Section 2.3(e) to represent only the right to receive upon surrender of such certificate the Consideration, without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Pursuant to Section 2.3(c), each certificate that immediately prior to the Effective Time represented Warrants shall be deemed as of and from the time specified in Section 2.3(c) to represent only the right to receive upon surrender of such certificate the Consideration under Section 2.3(c), without interest, in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. Any such certificate formerly representing Common Shares or Warrants, as applicable, not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Common Shares or Warrants, as applicable, of any kind or nature against the Corporation, the Acquiror or the Parent. On such date, all Consideration to which such former holder was entitled shall be deemed to have been surrendered to the Acquiror and all Consideration to which such former holder was entitled shall be returned to the Acquiror.
(e) Any payment made by way of cheque by the Depositary or the Corporation pursuant to this Plan of Arrangement that has not been deposited or has been returned to the Depositary or the Corporation, as the case may be, or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Time shall cease to represent a right or claim of any kind or nature and the right of the holder to receive the Consideration for Common Shares, Options or Warrants pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited for no consideration, and all cash to which such holder was entitled shall be returned to the Acquiror or the Corporation, as applicable.
(f) No holder of Common Shares, Options or Warrants shall be entitled to receive any consideration with respect to Common Shares, Options or Warrants other than as described in and Joinder in accordance with Section 2.3 and this Section 4.1, and, for greater certainty, no such holder the terms hereof the Contributor acknowledges that it will be entitled to receive any interest (bound by reason the terms and provisions of any delay in paying for such securities or otherwise), dividends, premium or other payment in connection therewiththe Acquirer’s Limited Partnership Agreement.
Appears in 1 contract
