Common use of Section 116 Certificates Clause in Contracts

Section 116 Certificates. (a) (i) Each JDS Silver Shareholder that is not a resident of Canada for purposes of the Tax Act may deliver or cause to be delivered to Purchaser on or before the date on which the payment of the Participating Shareholder Upfront Purchase Price, the Mines Act Permit Payment, the Resource Payment, or the Escrow Amount as applicable, is paid (each, a “Payment Date”) a certificate issued by the Canadian Minister of National Revenue under section 116 of the Tax Act (a “116 Certificate”) in respect of the transfer of its JDS Silver Shares to Purchaser (the “116 Shares”). (ii) If a 116 Certificate contemplated under Section 4.6(a)(i) is so delivered to Purchaser in respect of a JDS Silver Shareholder, Purchaser shall be entitled to withhold from the portion of the Participating Shareholder Upfront Purchase Price, the Mines Act Permit Payment, or the Resource Payment, as applicable, payable to that JDS Silver Shareholder on the relevant Payment Date (the “116 Share Consideration”) twenty-five percent (25%) of the amount, if any, by which such 116 Share Consideration exceeds the certificate limit fixed by the Minister of National Revenue in such certificate. All such withholdings shall, to the extent possible, be made from the cash portion of such 116 Share Consideration. (iii) If a 116 Certificate contemplated under Section 4.6(a)(i) is not so delivered, Purchaser shall be entitled to withhold from the cash portions of the 116 Share Consideration payable to that JDS Silver Shareholder on that particular Payment Date twenty-five percent (25%) of such 116 Share Consideration; provided however, that any Qualifying JDS Silver Shareholder may execute and deliver a 116 Agreement and receive on the relevant Payment Date its applicable portion of the Participating Shareholder Upfront Purchase Price or the Mines Act Permit Payment (as applicable), without deduction for withholding as set out in this Section 4.6(a)(iii). (iv) Any amounts withheld by Purchaser from the 116 Share Consideration under Section 4.6(a)(i) or (iii) shall be paid by Purchaser to the Escrow Agent, on the condition that such amounts shall be held by the Escrow Agent in trust for the benefit of the JDS Silver Shareholder in respect of which such amounts are withheld and Purchaser for payment to such JDS Silver Shareholder and the Receiver General for Canada, as described in this Section 4.6.

Section 116 Certificates. (a) (i) Each JDS Silver Shareholder that is not a resident With the exception of Canada for purposes Gross, each of the Tax Act may other Sellers (the "NON- RESIDENT SELLERS") shall use all reasonable efforts to deliver or cause to be delivered Purchaser, on the day prior to Purchaser on or before the date on which the payment of the Participating Shareholder Upfront Purchase PriceClosing Date, the Mines Act Permit Payment, the Resource Payment, or the Escrow Amount as applicable, is paid certificates required pursuant to (each, a “Payment Date”S) a certificate issued by the Canadian Minister of National Revenue under section 116 of the Income Tax Act (a “Canada) to permit Purchaser to pay the Purchase Price without any obligations pursuant to the Income Tax Act (Canada) to withhold or remit any portion thereof or any liability for failing to do so, failing which: (a) each of the Non-Resident Sellers shall continue to use all reasonable efforts to obtain the certificates required pursuant to (S) 116 Certificate”of the Income Tax Act (Canada); (b) if certificates required pursuant to (S) 116 of the Income Tax Act (Canada), in form and substance satisfactory to Purchaser, acting reasonably, are not received by Purchaser at or before 5:00 p.m. (Toronto time) on the 28th day after the last day of the calendar month in which the Closing occurs (the "CERTIFICATE DEADLINE DATE") and if there is no Final Balance Sheet determined in accordance with Section 2.3 by such time and date, Purchaser shall following the ----------- Certificate Deadline Date remit to Revenue Canada the amount required pursuant to (S) 116 of the Income Tax Act (Canada) in respect of the transfer Shares and the payment to Revenue Canada of its JDS Silver such amount shall be credited towards, and shall be deemed to have been paid to each of the Non-Resident Sellers in partial satisfaction of, the Holdback; provided that if the certificates required pursuant to (S) 116 of the Income Tax Act (Canada) are received by Purchaser after Closing but before the Certificate Deadline Date, Purchaser shall pay the Holdback to each of the Non-Resident Sellers in accordance with Section 2.2(b) without any deduction for withholding tax -------------- under (S) 116 of the Income Tax Act (Canada); and (c) if the Final Balance Sheet has been determined in accordance with Section 2.3 at or before 5:00 p.m. (Toronto time) on the ----------- Certificate Deadline Date and certificates required pursuant to (S) 116 of the Income Tax Act (Canada), in form and substance satisfactory to Purchaser, acting reasonably, are not received by Purchaser by such time and date, Purchaser shall pay each of the Non-Resident Sellers the amount of the Holdback less the amount required pursuant to (S) 116 of the Income Tax Act (Canada) to be remitted to Revenue Canada in respect of the Shares, and Purchaser shall, following the Certificate Deadline Date, remit to Revenue Canada the amount required pursuant to (S) 116 of the Income Tax Act (Canada) in respect of the Shares and the payment to Revenue Canada of such amount shall be credited towards, and shall be deemed to have been paid to each of the Non- Resident Sellers in partial satisfaction of, the Holdback provided that Purchaser shall have no further responsibilities to the Non- Resident Sellers in connection with such payment to Revenue Canada; provided further that if the certificates required pursuant to (S) 116 of the “Income Tax Act (Canada) are received by Purchaser after the determination of the Final Closing Balance Sheet but before the Certificate Deadline Date, Purchaser shall pay the balance of the Holdback to each of the Non-Resident Sellers without any deduction for withholding tax under (S) 116 Shares”of the Income Tax Act (Canada). (iid) If if Revenue Canada should assess or threaten to assess Purchaser for a 116 Certificate contemplated under Section 4.6(a)(i) is so delivered liability pursuant to Purchaser in respect of a JDS Silver Shareholder, Purchaser shall be entitled to withhold from the portion of the Participating Shareholder Upfront Purchase Price, the Mines Act Permit Payment, or the Resource Payment, as applicable, payable to that JDS Silver Shareholder on the relevant Payment Date (the “116 Share Consideration”) twenty-five percent (25%subsection 116(5) of the amount, if any, by which such 116 Share Consideration Income ----------------- Tax Act (Canada) because the cost of the Shares to the Purchaser exceeds the "certificate limit fixed by limit" (as defined in the Minister Income Tax Act (Canada)), such liability shall be considered a third party claim against Purchaser subject to Section 9 hereof. However, for purposes --------- of National Revenue Section 9, the claim pursuant to this subparagraph shall be --------- considered a breach of a covenant under Section 9.2(b) only in respect -------------- of the Non-Resident Seller whose payment is the subject of the liability assessed against Purchaser; such certificate. All such withholdings shall, claim shall not be subject to the extent possible, be made from the cash portion limitation of such 116 Share Consideration. (iii) If a 116 Certificate contemplated under Section 4.6(a)(i) is not so delivered, Purchaser shall be entitled to withhold from the cash portions of the 116 Share Consideration payable to that JDS Silver Shareholder on that particular Payment Date twenty-five percent (25%) of such 116 Share Consideration; provided however, that any Qualifying JDS Silver Shareholder may execute and deliver a 116 Agreement and receive on the relevant Payment Date its applicable portion of the Participating Shareholder Upfront Purchase Price or the Mines Act Permit Payment (as applicable9.6(b), without deduction for withholding as set out in this Section 4.6(a)(iii). (iv) Any amounts withheld by Purchaser from the 116 Share Consideration under Section 4.6(a)(i) or (iii) shall be paid by Purchaser to the Escrow Agent, on the condition that such amounts shall be held by the Escrow Agent in trust for the benefit of the JDS Silver Shareholder in respect of which such amounts are withheld and Purchaser for payment to such JDS Silver Shareholder and the Receiver General for Canada, as described in this Section 4.6.. --------------

Section 116 Certificates. (a)The following terms shall apply in ------------------------ respect of the Common Shares withheld pursuant to Section 2.1(b)(iv) of this Agreement: (i) Each JDS Silver Shareholder that is not a resident If, at Closing, Company Shareholders who are non- residents of Canada for purposes ("Non-resident Company Shareholders") deliver a clearance --------------------------------- certificate ("116 Certificate") issued by Revenue Canada pursuant to section 116 --------------- of the Tax Act may deliver or cause to be delivered to Purchaser on or before the date on which the payment of the Participating Shareholder Upfront Purchase Price, the Mines Act Permit Payment, the Resource Payment, or the Escrow Amount as applicable, is paid (each, a “Payment Date”) a certificate issued by the Canadian Minister of National Revenue under section 116 of the Tax Act (a “116 Certificate”) ITA in respect of the transfer exchange of its JDS Silver Shares the Common Shares, then no amount shall be required to Purchaser (be withheld pursuant to Section 2.1(b) of this Agreement unless the “116 Shares”)certificate limit is less than the particular Non-resident Company Shareholder's proceeds of disposition. (ii) If Acquisition Sub shall withhold from any and all Non- resident Company Shareholders who fail to deliver a 116 Certificate contemplated under at the Closing or who deliver a Section 4.6(a)(i) 116 Certificate having a certificate limit which is so delivered to Purchaser in respect less than such Non-resident Company Shareholder's proceeds of a JDS Silver Shareholder, Purchaser shall be entitled to withhold from the portion disposition such number of the Participating Shareholder Upfront Purchase Price, the Mines Act Permit Payment, or the Resource Payment, as applicable, payable to that JDS Silver Shareholder on the relevant Payment Date Parent Common Shares (the “116 Share Consideration”"Withheld Shares") twenty-five percent (25%) of the amount, if any, by which such 116 Share Consideration exceeds the certificate limit fixed by the Minister of National Revenue as --------------- Acquisition Sub determines in such certificate. All such withholdings shall, its sole discretion are necessary to the extent possible, fund any payment required to be made from the cash portion of such 116 Share Considerationby Parent or Acquisition Sub to Revenue Canada. (iii) If a Subject to clauses (iv) and (v) below, the Withheld Shares shall be held back unless and until either: (1) the appropriate 116 Certificate contemplated under Section 4.6(a)(iis delivered to Parent; or (2) is not so delivered, Purchaser shall be entitled sufficient funds to withhold from satisfy the cash portions of the 116 Share Consideration payable withholding obligations are remitted to that JDS Silver Shareholder on that particular Payment Date twenty-five percent (25%) of such 116 Share Consideration; provided however, that any Qualifying JDS Silver Shareholder may execute and deliver a 116 Agreement and receive on the relevant Payment Date its applicable portion of the Participating Shareholder Upfront Purchase Price or the Mines Act Permit Payment (as applicable), without deduction for withholding as set out in this Section 4.6(a)(iii)Parent. (iv) Any amounts withheld by Purchaser from If one or the 116 Share Consideration under Section 4.6(a)(i) or other of the conditions set forth in clause (iii) above is met on or prior to the day ("Remittance Date") that is --------------- three business days prior to the 30th day after the end of the month in which the Closing occurs, the Withheld Shares shall thereupon be released and shall be delivered to the Non-resident Company Shareholder. (v) If (i) the appropriate 116 Certificate is not delivered by a Non-resident Company Shareholder by the Remittance Date and (ii) an extension to the requirement to remit is not granted by Revenue Canada, then Parent shall remit to Revenue Canada on the business day following the Remittance Date the appropriate remittance amount, and for this purpose, except in circumstances where sufficient funds to satisfy the withholding obligations have been remitted to Parent in accordance with clause (iii) above, the Withheld Shares will be pledged to Acquisition Sub, and Acquisition Sub shall be entitled to dispose of the Withheld Shares on the Nasdaq National Market in order to generate net proceeds to fund such remittance. Any proceeds generated above the amount required to fund such remittance and related transaction costs (if any) shall be paid by Purchaser to the Escrow AgentNon-resident Company Shareholder. (vi) If for any reason such remittance cannot be fully funded out of the sale of the Withheld Shares, on the condition that such amounts there shall automatically be held due and payable by the Escrow Agent in trust for Non-resident Company Shareholder to Acquisition Sub an amount equal to the benefit amount required to be so remitted less the amount otherwise funded by the sale of the JDS Silver Shareholder in respect of which such amounts are withheld and Purchaser for payment to such JDS Silver Shareholder and the Receiver General for Canada, as described in this Section 4.6Withheld Shares.

Section 116 Certificates. (a) (i) Each JDS Silver Shareholder Purchaser and Seller acknowledge that is not a resident of Canada for purposes pursuant to Section 116 of the Income Tax Act may deliver or cause to be delivered to (Canada), Purchaser on or before the date on which the payment must withhold and, within thirty (30) days of the Participating Shareholder Upfront Purchase Price, end of the Mines Act Permit Payment, month which includes the Resource Payment, Closing Date (or the Escrow Amount such later time as applicable, is paid (each, a “Payment Date”) a certificate issued permitted in writing by the Canadian Minister of National Revenue under section 116 Revenue), remit to the Receiver General of the Tax Act (a “116 Certificate”) in respect of the transfer of its JDS Silver Shares to Purchaser (the “116 Shares”). (ii) If a 116 Certificate contemplated under Section 4.6(a)(i) is so delivered to Purchaser in respect of a JDS Silver Shareholder, Purchaser shall be entitled to withhold from the portion of the Participating Shareholder Upfront Purchase Price, the Mines Act Permit Payment, or the Resource Payment, as applicable, payable to that JDS Silver Shareholder on the relevant Payment Date (the “116 Share Consideration”) twenty-five percent (Canada 25%) % of the amount, if any, by which the purchase price allocated to each class of shares in the capital stock of Wxxxx Canada and AAC exceeds the “certificate limit” fixed in the certificate issued in respect of such class of shares pursuant to Section 116 Share Consideration of the Income Tax Act (Canada) (each, a “Section 116 Certificate”). If a Section 116 Certificate with respect to the sale of any class of shares in the capital stock of Wxxxx Canada or AAC with a certificate limit at least equal to the amount of the Initial Aggregate Purchase Price allocated to that class of shares in accordance with Section 7.1(b) has not been provided to Purchaser on or before the Closing Date, Purchaser shall withhold an amount (the “Withheld Amount”) equal to: (i) 25% of the amount by which the amount of the Initial Aggregate Purchase Price allocated to such class of shares exceeds the certificate limit fixed in the Section 116 Certificate with respect to that class of shares, if any, provided by Seller to Purchaser on or before the Closing Date; or (ii) if a Section 116 Certificate is not provided with respect to a class of shares, 25% of the amount of the Initial Aggregate Purchase Price allocated to such shares. Purchaser shall invest the Withheld Amount in interest-bearing instruments selected by Seller and the Withheld Amount shall be released by Purchaser as follows: (a) if a Section 116 Certificate in respect of a class of shares of Wxxxx Canada or AAC is delivered to Purchaser before 2:00 p.m. (New York City time) on the Business Day prior to the last Business Day of the month following the month which includes the Closing Date or such later day as permitted in writing by the Minister of National Revenue (the “Remittance Date”) and the certificate limit therein is not less than the amount of the Initial Aggregate Purchase Price payable for such class of shares, the Withheld Amount in respect of such certificate. All such withholdings shall, class of shares shall be released to Seller; and (b) any funds held on account of the Withheld Amount by Purchaser which are not paid or payable to Seller pursuant to this Section 7.5 by 2:00 p.m. (New York City time) on the Remittance Date shall be remitted by Purchaser to the extent possible, be made from Receiver General of Canada pursuant to Section 116 of the cash portion Income Tax Act (Canada). Purchaser shall provide to Seller forthwith a receipt issued by the Receiver General of Canada evidencing such 116 Share Considerationremittance. (iiic) If a All interest earned on the Withheld Amount shall be paid to Seller, net of any applicable withholdings. Notwithstanding anything to the contrary in this Agreement, if any Post-Closing Adjustment is payable by Purchaser to Seller in respect of any class of shares in the capital stock of Wxxxx Canada or AAC and the portion of the Final Aggregate Purchase Price allocable to such class of shares exceeds the certificate limit in the Section 116 Certificate contemplated under Section 4.6(a)(i) is not so deliveredin respect of the sale of any such class of shares, Purchaser shall be entitled to withhold from the cash portions 25% of the difference. Any amount so withheld shall be invested in interest-bearing instruments selected by Seller and shall be released to Seller if a Section 116 Share Consideration payable Certificate with an appropriate revised certificate limit is delivered to that JDS Silver Shareholder on that particular Payment Date twenty-five percent Purchaser before 2:00 p.m. (25%New York City time) of such 116 Share Consideration; provided however, that any Qualifying JDS Silver Shareholder may execute and deliver a 116 Agreement and receive on the relevant Payment Date its applicable portion last Business Day of the Participating Shareholder Upfront Purchase Price third month following the month in which the amount was withheld, or the Mines Act Permit Payment (as applicable), without deduction for withholding as set out in this Section 4.6(a)(iii). (iv) Any amounts withheld by Purchaser from the 116 Share Consideration under Section 4.6(a)(i) or (iii) otherwise shall be paid remitted by Purchaser to the Escrow Agent, on the condition that such amounts shall be held by the Escrow Agent in trust for the benefit Receiver General of Canada pursuant to Section 116 of the JDS Silver Shareholder in respect of which such amounts are withheld Income Tax Act (Canada), and Purchaser for payment shall provide to such JDS Silver Shareholder and Seller forthwith a receipt issued by the Receiver General for Canadaof Canada evidencing such remittance. All interest, less applicable withholding taxes shall be released to Seller at the same time as described in this Section 4.6the withheld amount is so released or remitted.