Litigation and Related Matters The commencement of, or any material development in, any action, suit, proceeding or investigation affecting the Borrower or any of its Subsidiaries or any of their respective properties before any arbitrator or Governmental Authority, (i) in which the amount involved that the Borrower reasonably determines is not covered by insurance or other indemnity arrangement is $50,000,000 or more, (ii) with respect to any Document or any material Indebtedness or preferred stock of the Borrower or any of its Subsidiaries or (iii) which, if determined adversely to the Borrower or any of its Subsidiaries, could reasonably be expected to have a Material Adverse Effect.
Definitions and Related Matters For purposes of this Agreement, the capitalized terms used herein shall have the meanings assigned to them herein or in the attached Exhibit 1 and, for purposes of this Agreement and all other documents executed in connection herewith, the rules of construction set forth in Exhibit 1 shall govern.
The Merger and Related Matters 4 Section 2.01. Certificate of Merger.................................................4 Section 2.02. The Effective Time....................................................4 Section 2.03. Certain Effects of the Merger.........................................4 Section 2.04. Effect of the Merger on Capital Stock.................................5 Section 2.05. Delivery, Exchange and Payment........................................6 Section 2.06. Merger Consideration Calculation......................................7 Section 2.07. Fractional Shares.....................................................7
Compensation and Related Matters During the Term of the Executive’s employment, as compensation and consideration for the performance by the Executive of the Executive’s duties, responsibilities and covenants pursuant to this Agreement, the Company shall pay the Executive and the Executive agrees to accept in full payment for such performance the amounts and benefits set forth below.
The Arrangement At the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality:
(i) The holders of the Orezone 2008 Options, the Orezone Convertible Debenture and the Orezone Warrants shall not be entitled to receive Orezone Shares upon the exercise thereof.
(ii) Each Orezone 2008 Option outstanding immediately prior to the Effective Time, whether vested or not, shall remain outstanding in accordance with its terms which provide that such Orezone 2008 Option may be exercised by the holder thereof at any time up to and including (but not after) the date that is 30 days after the Effective Time.
(iii) The Orezone Warrants, if outstanding immediately prior to the Effective Time, will remain outstanding in accordance with their terms.
(iv) The Orezone Convertible Debenture, if outstanding immediately prior to the Effective Time, will be terminated and the Debentureholder will receive from IAMGOLD as to 50 per cent of the principal and interest owing thereunder cash and, as to the remaining 50 per cent the principal and interest owing thereunder, IAMGOLD Shares on the terms and conditions set out in the Convertible Debenture Waiver Agreement.
(v) Orezone shall undertake a reorganization of capital within the meaning of section 86 of the Tax Act as follows, and in the following order:
A. The authorized capital of Orezone will be amended by:
I. re-designating the Orezone Shares as Class B Shares and each certificate representing such an outstanding Orezone Share shall, as and from the time such re-designation is effective, represent a Class B Share; and
II. the creation of an unlimited number of Class A Shares; and the articles of Orezone shall be deemed to be amended accordingly
B. Each issued Class B Share, other than those held by Dissenting Orezone Shareholders, will be exchanged with Orezone for one Class A Share and ● New Orezone Shares.
C. Each issued Class B Share held by a Dissenting Orezone Shareholder (for greater certainty, being an Orezone Shareholder who has complied with the Dissent Rights and is ultimately entitled to be paid for its Class B Shares) will be acquired by IAMGOLD in consideration for a debt claim against IAMGOLD to be paid fair value of such Class B Shares pursuant to the Dissent Procedures.
D. The stated capital of Orezone for the outstanding Class A Shares will be an amount equal to the stated capital of Orezone for the Class B Shares, less the fair market value of the New Orezone Shares distributed to Orezone Shareholders, other than Dissenting Orezone Shareholders pursuant to section 4 hereof and the paid-up capital of the Class A Shares of Orezone will be reduced accordingly.
E. The Class B Shares (including the Class B Shares held by Dissenting Orezone Shareholders and acquired by IAMGOLD pursuant to paragraph 3(a)(vi)(D) hereof) will be cancelled.
(vi) Each outstanding Class A Share will be transferred to IAMGOLD in consideration for IAMGOLD Shares on the basis of the Exchange Ratio.
(vii) The holders of the Orezone 1997 Options shall not be entitled to receive Orezone Shares upon the exercise thereof and each Orezone 1997 Option outstanding immediately prior to the Effective Time, whether vested or not, shall be exchanged for a fully-vested option granted by IAMGOLD (each an “IAMGOLD Replacement Option” and collectively the “IAMGOLD Replacement Options”) to acquire that number of IAMGOLD Shares equal to the product of (A) the number of Orezone Shares subject to the Orezone 1997 Option immediately before the Effective Time and (B) the Exchange Ratio, and the exercise price per IAMGOLD Share subject to any IAMGOLD Replacement Option shall be equal to the quotient of (A) the exercise price per Orezone Share subject to such Orezone 1997 Option immediately before the Effective Time divided by (B) the Exchange Ratio. Except as set out above, the terms of each IAMGOLD Replacement Option shall be the same as the Orezone 1997 Option exchanged therefor.
(viii) With respect to each Class A Share:
A. each such Orezone Shareholder, other than IAMGOLD, shall cease to be the holder of such Class A Share on the Effective Date and such holder’s name shall be removed from the share register of Orezone as at the Effective Time; and
B. IAMGOLD shall be deemed to be the transferee of such Class A Share (free and clear of any Encumbrance) on the Effective Date and shall be entered in the share register of Orezone as the holder thereof as at the Effective Time.
(ix) Orezone and IAMGOLD Subco shall be amalgamated to form IAMGOLD Amalco and continue as one corporation under the CBCA on the terms prescribed in this Plan of Arrangement and, as a result, the property and liabilities of Orezone and IAMGOLD Subco will become the property and liabilities of IAMGOLD Amalco. Orezone and IAMGOLD Subco will merge with the same effect as if they were amalgamated under section 184(2) of the CBCA.
(x) Orezone and IAMGOLD Subco will continue as one company;
(xi) Following the amalgamation of Orezone and IAMGOLD Subco described in paragraph 3(a)(ix) hereof and from and after such time:
A. IAMGOLD Amalco will own and hold all property of Orezone and IAMGOLD Subco, and, shall continue to be liable for the obligations of Orezone and IAMGOLD Subco and will be liable for the obligations of Orezone and IAMGOLD Subco, including civil, criminal and quasi-criminal liabilities and all contracts, disabilities, options, warrants and debts of each of Orezone and IAMGOLD Subco;
B. all rights, contracts, permits and interests of Orezone and IAMGOLD Subco will continue as rights, contracts, permits and interests of IAMGOLD Amalco as if Orezone and IAMGOLD Subco continued and, for greater certainly, the merger will not constitute a transfer or assignment of the rights or obligations of either of Orezone or IAMGOLD Subco under any such rights, contracts, permits and interests;
C. any existing cause of action, claim or liability to prosecution is unaffected;
D. a civil, criminal or administrative action or proceeding pending by or against Orezone or IAMGOLD Subco may continue to be prosecuted by or against IAMGOLD Amalco;
E. a conviction against, or ruling, order or judgment in favour of or against, Orezone or IAMGOLD Subco may be enforced by or against IAMGOLD Amalco;
F. the name of IAMGOLD Amalco shall be l;
G. all outstanding Class A Shares shall be cancelled without any repayment of capital in respect thereof;
H. all outstanding common shares of IAMGOLD Subco shall be cancelled and IAMGOLD shall receive on the Amalgamation one common share of IAMGOLD Amalco for the one common share of IAMGOLD Subco previously held by IAMGOLD;
I. the registered and records office of IAMGOLD Amalco shall be located at l;
J. the head office of IAMGOLD Amalco will be located at l;
K. IAMGOLD Amalco shall be authorized to issue an unlimited number of common shares;
L. the articles of amalgamation of IAMGOLD Amalco shall be substantially in the form attached as appendix l to this Plan of Arrangement;
M. the by-laws of IAMGOLD Amalco shall be substantially in the form of the by-laws of IAMGOLD Subco;
N. the first annual general meeting of IAMGOLD Amalco will be held within 18 months after the Effective Date; and
O. the first directors of IAMGOLD Amalco following the Amalgamation shall be l; provided that none of the foregoing will occur or be deemed to occur unless all of the forgoing occurs.
TRAINING AND RELATED MATTERS The parties recognise that in order to increase the efficiency and productivity of the company a significant commitment to structured training and skill development is required. Accordingly the parties commit themselves to:
a) The parties to this Agreement recognise the importance of the apprenticeship system to the construction industry. It is agreed that every employer party to this Agreement who employs five (5) or more tradespersons in any one classification shall undertake to employ at least one (1) apprentice or make arrangements to host an apprentice from an agreed group apprenticeship scheme. Where an employer does not currently have an apprentice as per this provision, reasonable time shall be allowed to enable the employer to comply with this clause. Further, the parties are committed to a strong ratio of apprentices in the industry. Apprenticeship levels on a specific project may be discussed at the Project Pre-Commencement Conference (refer Clause 16).
b) Providing employees with the opportunity to acquire additional skills within relevant career path structures through appropriate structured training based on nationally endorsed (i.e. Construction Training Australia endorsed) competency standards and curriculum;
c) Actively encouraging employees to seek formal recognition of their skills (i.e. recognition of prior learning); and
d) Using training providers accredited and acceptable to the parties. The CFMEU, MBAV and other employer associations are legitimately engaged in providing training to industry and it is hereby agreed that all parties will properly recognise and accept the validity of nationally accredited training as provided by the other parties.
e) The parties will consult on the development of training programs which are consistent with the following: • Training provided will be consistent with the company’s business requirements, relevant to the work of the employees, consistent with the skills development of each employee and with applicable national competency standards. • Training may be taken either on or off the job with all reasonable steps being taken to conduct training in normal working hours. • If an approved training activity is undertaken during ordinary working hours, the employee/s concerned shall not suffer any loss of pay. • Approved training activities undertaken outside of ordinary hours will be paid at single time or will, at the employee’s option, be taken as time off in lieu of payment. Provided that the scheduling of time off must be consistent with the needs of the business and be by agreement with the company. • Training costs of courses approved by the company will be met by the company. • The company will not be asked to meet the costs of training undertaken by employees which was not approved by the company. • Leave of absence granted pursuant to this clause shall count as service for all purposes of the award and this agreement. • Accredited members of the union will be allowed up to 5 days per year, without loss of pay, to attend trade union educational courses conducted or approved by the union. (see appendix H)
f) The parties to this Agreement recognise the importance of the role that Apprentices/Trainees fulfill within the industry and, more importantly, a role that they will fulfill as trades persons following the conclusion of the indentures. To this end the Victorian Building Industry Consultative Committee will investigate ways of enhancing employment prospects for Apprentice/Trainees. In addition it is agreed that, where appropriate, employers will use their best endeavours to employ Apprentices/Trainees in order to ensure appropriate trade persons levels for the future.
Indemnification and Related Matters Section 8.01
Organization and Related Matters Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
Press Releases and Related Matters Each Credit Party executing this Agreement agrees that neither it nor its Affiliates will in the future issue any press releases or other public disclosure using the name of GE Capital or its affiliates or referring to this Agreement, the other Loan Documents or the Related Transactions Documents without at least 2 Business Days' prior notice to GE Capital and without the prior written consent of GE Capital unless (and only to the extent that) such Credit Party or Affiliate is required to do so under law and then, in any event, such Credit Party or Affiliate will consult with GE Capital before issuing such press release or other public disclosure. Each Credit Party consents to the publication by Agent or any Lender of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement. Agent reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements.
Liens and Related Matters A. PROHIBITION ON LIENS. Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens described in Schedule 7.2 annexed hereto; ------------
(iv) Liens securing Indebtedness permitted under subsection 7.1(vii), which Liens are existing prior to the time the entity which incurred such Indebtedness became a Subsidiary of Company; provided that such Liens were -------- not incurred in connection with, or in contemplation of, the acquisition of such Subsidiary and such Liens extend to or 133 cover only the property and assets of such entity which were covered by such Liens and which were owned by such entity, in each case at the time such entity became a Subsidiary of Company; and
(v) Other Liens securing Indebtedness in an aggregate amount not to exceed $1,000,000 at any time outstanding.
