The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order without any further act or formality on the part of any Person: (a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur.
Appears in 2 contracts
Samples: Arrangement Agreement (Viemed Healthcare, Inc.), Arrangement Agreement (Viemed Healthcare, Inc.)
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality on the part of any Person: :
(a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: at the Effective Time:
(i) each Dissenting Securityholder Share held by an Aphria Dissenting Shareholder who is ultimately determined to be entitled to be paid the fair value of the Dissenting Shares in respect of which such Aphria Dissenting Shareholder has exercised Dissent Rights shall be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality on its part, to Aphria (free and clear of all Liens) and such Aphria Dissenting Shareholder will cease to be the holder thereof or to have any rights as a PHM Securityholder holder in respect of such Dissenting Share other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesDissenting Share determined and payable in accordance with Article 4; and
(ii) at the same time as the step in Section 3.1(b)(i) occurs, the name of each Aphria Dissenting Securityholder's name will Shareholder shall be removed from the register of the Aphria Shares and such Dissenting Shares shall be automatically cancelled as of the Effective Date;
(b) at the same time as the steps in Section 3.1(a) occur:
(i) each Aphria Share outstanding immediately prior to the Effective Time (other than Dissenting Shares held by Aphria Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of their Dissenting Shares as determined in accordance with Article 4), shall be, and shall be deemed to be, transferred by the holder thereof to Tilray (free and clear of all Liens) in exchange for issuance of the Share Consideration;
(ii) at the same time as the step in Section 3.1(b)(i) occurs, the holder of each Aphria Share transferred to Tilray pursuant to Section 3.1(b)(i) shall cease to be the holder thereof, or to have any rights as a holder thereof other than the right to receive the Share Consideration issuable in respect of each Aphria Share held pursuant to Section 3.1(b)(i) and shall be removed from the register of the Aphria Shares and legal and beneficial title to each such Dissent Securities from Aphria Share shall be transferred to Tilray and Tilray will be and be deemed to be the transferee and legal and beneficial owner of such Aphria Share (free and clear of any Liens) and will be entered in the central securities register of PHMAphria as the sole holder thereof; and
(iii) the Dissent Securities Tilray will be the holder of all of the outstanding Aphria Shares;
(c) immediately after the steps in Section 3.1(b) occur:
(i) each Aphria Option, other than any Continuing Aphria Option, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a stock option (a “Replacement Option”) to purchase a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares issuable on exercise of such Aphria Option immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares) for an exercise price per Tilray Share (rounded up to the nearest whole cent) equal to the exercise price per share of such Aphria Option immediately prior to the Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and the Aphria Options shall thereupon be cancelled; . The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Options shall be the same as the terms and conditions of the Aphria Option for which it is exchanged except that such Replacement Options shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria Options by Aphria Securityholders resident in Canada who acquired Aphria Options by virtue of their employment. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option held by such an Aphria Securityholder will be increased such that the In-The-Money Amount of the Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the Aphria Option immediately before the exchange. For any Aphria Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, it is intended that such exchange will comply with Treasury Regulation Section 1.424(1)(a). For any Aphria Option that is a nonqualified option held by a US taxpayer, it is intended that such exchange will be implemented in a manner intended comply with Section 409A of the Code. Any document previously evidencing the Aphria Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Options shall be issued;
(ii) each Continuing Aphria Option shall, without any further action on the part of any holder of any Continuing Aphria Option, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Aphria Omnibus Incentive Plan, the terms of the Continuing Aphria Options shall be amended so as to substitute for the Aphria Shares subject to such Continuing Aphria Options such number of Tilray Shares equal to (A) the number of Aphria Shares subject to the Continuing Aphria Options immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;
(iii) each Aphria RSU other than a Continuing Aphria RSU, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an award of restricted share units granted by Tilray (the “Replacement RSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such Aphria RSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria RSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement RSUs shall be the same as the terms and conditions of the Aphria RSU for which it is exchanged except that such Replacement RSU shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria RSUs shall thereafter evidence and be deemed to evidence such Replacement RSUs and no certificates evidencing the Replacement RSUs shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria RSUs by Aphria Securityholders resident in Canada who acquired Aphria RSUs by virtue of their employment;
(iv) each Continuing Aphria RSU shall, without any further action on the Dissenting Securityholder part of any holder of any Continuing Aphria RSU, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Aphria Omnibus Incentive Plan, the terms of the Continuing Aphria RSUs shall be amended so as to substitute for the Aphria Shares subject to such Continuing Aphria RSUs such number of Tilray Shares equal to (A) the number of Aphria Shares subject to the Continuing Aphria RSUs immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;
(v) each Aphria DSU other than a Continuing Aphria DSU, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an award of deferred share units granted by Tilray (the “Replacement DSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such Aphria DSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria DSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement DSUs shall be the same as the terms and conditions of the Aphria DSU for which it is exchanged except that such Replacement DSU shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria DSUs shall thereafter evidence and be deemed to evidence such Replacement DSUs and no certificates evidencing the Replacement DSUs shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria DSUs by Aphria Securityholders resident in Canada who acquired Aphria DSUs by virtue of their employment;
(vi) each Continuing Aphria DSU shall, without any further action on the part of any holder of any Continuing Aphria DSU, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Aphria Omnibus Incentive Plan, the terms of the Continuing Aphria DSUs shall be amended so as to substitute for the Aphria Shares subject to such Continuing Aphria DSUs such number of Tilray Shares equal to (A) the number of Aphria Shares subject to the Continuing Aphria DSUs immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;
(vii) each 2016 Aphria Warrant, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a warrant (a “Replacement Warrant”) to purchase a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares issuable on exercise of such Aphria Warrant immediately prior to the Effective Time for an exercise price per Tilray Share equal to the exercise price per share of such Aphria Warrant immediately prior to the Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Warrant being exercisable for a fraction of a Tilray Share, then the number of Tilray Shares subject to such Replacement Warrant shall be rounded down to the next whole number of Tilray Shares) and the 2016 Aphria Warrants shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Warrants shall be the same as the terms and conditions of the 2016 Aphria Warrant for which it is exchanged. Any document previously evidencing a 2016 Aphria Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued;
(viii) other than the 2016 Aphria Warrants, each Aphria Warrant shall, without any further action on the part of any holder of Aphria Warrant, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Aphria Warrant Indenture, the terms of the Aphria Warrants shall be amended so as to substitute for the Aphria Shares subject to such Aphria Warrants such number of Tilray Shares equal to (A) the number of Aphria Shares subject to the Aphria Warrants immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;
(ix) the Aphria Warrant Indenture shall be terminated and, for greater certainty, all rights to receive any securities of the Aphria formerly held by Aphria Securityholders shall be extinguished; and
(d) no person shall have any rights, liabilities or other obligations in respect of the share capital of Aphria other than Tilray and each holder of Aphria Shares, Aphria Options, Continuing Aphria Options, Aphria RSUs, Continuing Aphria RSUs, Aphria DSUs, Continuing Aphria DSUs or 2016 Aphria Warrants outstanding immediately prior to the Effective Time, with respect to each step set out above applicable to such holder, shall be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common all Aphria Shares, being shares without par valueAphria Options, will be created as a classAphria RSUs, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act Aphria DSUs or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result 2016 Aphria Warrants held by such holder in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occuraccordance with such step.
Appears in 2 contracts
Samples: Arrangement Agreement (Aphria Inc.), Arrangement Agreement (Tilray, Inc.)
The Arrangement. Commencing at On the Effective Time, except as otherwise noted hereinDate, the following will shall occur and will be deemed to occur in the following order without any further act or formality on notwithstanding anything contained in the part provisions attaching to any of any Person: (a) all Dissent Securities held by Dissenting Securityholders the securities of the Corporation. New Skyline or Copper Mountain, but subject to the provisions of Article 4:
3.1.1 The Memorandum of the Corporation shall be amended to authorize the Corporation to issue 350,000,000 shares divided into 200,000,000 Common Shares and 100,000,000 Preferred Shares without par value, issuable in series and 50,000,000 Exchangeable Shares without par value and the Memorandum shall be amended as set out in Exhibit .I-A;
3.1.2 The Articles of the Corporation will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid amended by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and adding the special rights and restrictions attached to the Exchangeable Shares set out in Exhibit I-B hereto;
3.1.3 The Corporation will transfer and assign to New Skyline all of the assets of the Corporation other than the Mill Equipment (collectively, the "Transferred Assets") at the fair market value thereof in exchange for New Skyline assuming the Indemnified Liabilities and the issue by New Skyline to the Corporation of 40 New Skyline Common Shares and a non-interest bearing demand promissory note in an amount equal to the difference between the fair market value of the Transferred Assets less the amount of the Indemnified Liabilities (the "Note");
3.1.4 Each issued and outstanding Skyline Common Share (other than those held by a dissenting holder) shall be exchanged for one Pre-Amalgamation Common Share and one Exchangeable Share. Each Skyline Common Shareholder (other than a dissenting holder) shall cease to be the holder of the Skyline Common Shares so exchanged and shall become the holder of the number of Pre-Amalgamation Common Shares and Exchangeable Shares Issued to such shares Skyline Common Shareholder. The name of such Skyline Common Shareholder shall be removed from the register of members of Skyline Common Shares with respect to the Skyline Common Shares so exchanged and shall be added to the registers of members of Pre-Amalgamation Common Shares and Exchangeable Shares as the holder of the number of Pre-Amalgamation Common Shares and Exchangeable Shares, respectively, so issued to such Skyline Common Shareholder;
3.1.5 One share certificate representing the aggregate number of Exchangeable Shares and one share certificate representing the aggregate number of Pre-Amalgamation Common Shares issued pursuant to section 3.1.4 will be amended issued to provide that each PHM Share is entitled to two votes at any meeting and held by the Depository in trust and for the benefit of the shareholders of PHM, Skyline Common Shareholders (other than dissenting holders);
3.1.6 The Skyline Common Shares exchanged for Pre-Amalgamation Common Shares and Exchangeable Shares pursuant to reflect such amendments PHM’s articles section 3.1.4 shall be cancelled;
3.1.7 Each (former) Skyline Common Shareholder (other than a dissenting holder) will be deemed to have sold or transferred all of his, her or its Exchangeable Shares to New Skyline for consideration consisting solely on one New Skyline Common Share for each Exchangeable Share so transferred. In connection with such sale and transfer each holder of Exchangeable Shares so sold and transferred shall cease to be amended by replacing Section 26.3 the holder of PHM’s articles in its entirety the Exchangeable Shares so sold and transferred and shall become the holder of the number of New Skyline Common Shares issued to such holder. The name of such holder shall be removed from the register of members of Exchangeable Shares with a new Section 26.3 respect to the Exchangeable Shares so sold and transferred and shall be added to the register of members of New Skyline Common Shares as set out in Appendix “A” the holder of the number of New Skyline Common Shares so issued to this Plan of Arrangement such holder, and PHM’s notice of articles will New Skyline shall be and shall be deemed to be amended accordingly; (ii) the transferee of the Exchangeable Shares so transferred and the name of New Common Shares, being shares without par value, Skyline shall be entered in the register of members of Exchangeable Shares as the holder of the number of Exchangeable Shares so sold and transferred to New Skyline;
3.1.8 The Depository will deliver to New Skyline the share certificate representing the Exchangeable Shares sold and transferred to New Skyline pursuant to section 3.1.7;
3.1.9 All of the Exchangeable Shares owned by New Skyline shall be redeemed for their aggregate redemption value in exchange for the cancellation of the non-interest-bearing demand promissory note. The Exchangeable Shares will be created as a class, cancelled;
3.1.10 All New Skyline Common Shares held by the identifying Corporation will be cancelled;
3.1.11 The name of New Skyline be changed to "Skyline Gold Corporation" and the Memorandum of New Skyline be amended to be in the form provided in Exhibit I-C hereto;
3.1.12 The number of directors of New Skyline will be set at 4 and the directors of New Skyline will be Xxxxxx Xxxx, Xxxxxxxx X. Xxxxxxxxx, Xxxxxxxxx Xxxx and Xxxxxxxxx X. Xxxxxxxx;
3.1.13 The auditors of New Skyline will be KPMG LLP;
3.1.14 The Corporation and Copper Mountain will amalgamate, pursuant to the provisions of the Act, and continue as one company in the manner set out herein and with the effect set out in Section I 247 of the Company Act, and each of the Corporation and Copper Mountain will contribute to New Copper Mountain all of its assets, subject to all of its liabilities and New Copper Mountain will assume all such liabilities;
3.1.15 The name of New Copper Mountain will be "Copper Mountain Mines Ltd." or such other name as may be acceptable to the regulatory authorities and the directors of Copper Mountain;
3.1.16 Each holder of Pre-Amalgamation Common Shares will receive one New Copper Mountain Common Share for every eight Pre-Amalgamation Common Shares held and each Copper Mountain Shareholder will receive such number of New Copper Mountain Common Shares as is equal to the Exchange Ratio for each Original Copper Mountain Common Share held. No fractional New Copper Mountain Common Shares will be “issued to the Skyline Common Shares”, Shareholders or the Original Copper Mountain Shareholders and the maximum number no cash will be paid in lieu of fractional shares. Any fractions of New Copper Mountain Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if resulting from the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued exchange will be rounded down to the nearest whole number with fractions of Newco Shares) one-half or greater being rounded to the next higher whole number and fractions of less than one-half being rounded to the next lower whole number.
3.1.17 Each Original Copper Mountain Warrant will be amended so that each holder of an Original Copper Mountain Warrant will be entitled to receive on exercise of the Original Copper Mountain Warrant such number of New Copper Mountain Common Shares as to equal to the Exchange Ratio for each Original Copper Mountain Common Shares such holder of an Original Copper Mountain Warrant was entitled to at an exercise price equal to the exercise price set forth therein divided by the Exchange Ratio. Any fractions of New Copper Mountain Common Shares resulting from the foregoing exchange will be rounded to the nearest whole number with fractions of one-half or greater being rounded to the next higher whole number and fractions of less than one-half being rounded to the next lower whole number.
3.1.18 The Memorandum of New Copper Mountain will be as set forth in Exhibit I-D attached hereto, and the PHM Shares will thereupon be cancelled, and: (A) the holders Article of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names New Copper Mountain will be removed from the securities register set forth in Exhibit I-E attached hereto.
3.1.19 The directors of PHM; new Copper Mountain will be Chengfeng Zhou, Xxxxxx X. Xxxxxx, Xx Xxxxx, L Xxxxxx Xxxxxxx, Senator Xxxx Xxxxxx, Xxxxxx X. Xxxx and provided that none Xxxxxxxx X. Xxxxxxxxx.
3.1.20 The auditors of New Copper Mountain will be KPMG LLP.
3.1.21 New Copper Mountain shall issue to New Skyline such number of New Copper Mountain Common Shares as is equal to 5 % of the foregoing will occur or be deemed to occur unless all of total issued and outstanding New Copper Mountain Common Shares upon New Skyline entering into the foregoing occurs or is deemed to occurTechnical Services Agreement.
Appears in 2 contracts
Samples: Arrangement Agreement (China Ventures Inc.), Arrangement Agreement (China Education Resources Inc.)
The Arrangement. Commencing at the Effective Time, except as otherwise noted hereinsubject to the Dissent Rights referred to in Section 3.1, the following will shall occur and will be deemed to occur in the following order without any further act or formality on and, except as otherwise noted in this Section 2.2, with each transaction or event being deemed to occur immediately after the part occurrence of any Person: the transaction or event immediately preceding it:
(a) all Dissent Securities Each Nu-Gro Option held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option an Optionholder that has not been duly exercised prior to the Effective Time will be deemed transferred by the Optionholder to Nu-Gro and be surrendered cancelled in exchange for a cash payment from Nu-Gro equal to the greater of $1.00 and the amount, if any, by which (x) the number of Nu-Gro Common Shares subject to such Nu-Gro Option multiplied by an amount equal to the Consideration, exceeds (y) the aggregate exercise price payable for the Nu-Gro Common Shares subject to such Nu-Gro Option.
(b) Each Nu-Gro Common Share (other than those held by Nu-Gro Dissenting Shareholders or any Holdco in respect of which a valid Holdco Election has been made) and each Holdco Share will be transferred to and acquired by Subco in exchange for the payment of the Consideration.
(c) In respect of each Nu-Gro Common Share transferred pursuant to Section 2.2(b), the name of the Shareholder will be removed from the register of Shareholders and Subco will be added to the register of Shareholders.
(d) In respect of each Holdco Share transferred pursuant to Section 2.2(b), the name of the Holdco Shareholder will be removed from the applicable register of holders of Holdco Shares and Subco will be added to the applicable register of holders of Holdco Shares.
(e) Subco and each Holdco shall be amalgamated to form Subco Amalco and will continue as one corporation under the OBCA and the following provisions will apply:
(i) the common shares of Subco held by the holder thereof will be exchanged for an equal number of Subco Amalco Common Shares;
(ii) all issued and outstanding shares of each Holdco held by Subco shall be cancelled (without any action on the part repayment of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed capital in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and thereof;
(iii) the respective option registers name of PHM and Newco will Subco Amalco shall be deemed to be amended accordingly; and “Jupiter Acquisition Corporation”;
(civ) PHM will undertake a reorganization of capital within the meaning of Section 86 address of the Tax Actregistered office of Subco Amalco shall be 000 Xxxx Xxxxxx Xxxx, which organization will occur in Xxxxx 0000, 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0;
(v) there shall be no restriction on the following order: business Subco Amalco may carry on or on the powers it may exercise;
(ivi) the identifying name Subco Amalco shall be authorized to issue an unlimited number of the PHM Shares will be changed from common shares (“Subco Amalco Common Shares” to “Class A Common Shares” ”) and an unlimited number of preferred shares, issuable in series, in each case having the special rights rights, privileges, restrictions and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as conditions set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; 2 hereto;
(iivii) the New Common Shares, being shares without par value, will minimum number of directors of Subco Amalco shall be created as a class, the identifying name of the New Common Shares will be “Common Shares”, one and the maximum number of New directors of Subco Amalco shall be ten (10), and the initial number shall be two (2);
(viii) the directors of Subco Amalco shall be the directors of Subco immediately prior to the Effective Time; and
(ix) the by-laws of Subco Amalco shall be substantially the same as the by-laws of Subco.
(f) Subco Amalco and Nu-Gro shall be amalgamated to form Amalco and will continue as one corporation under the OBCA and the following provisions will apply:
(i) the common shares of Subco Amalco held by the holder thereof will be exchanged for an equal number of Amalco Common Shares which PHM will Shares;
(ii) all issued and outstanding shares of Nu-Gro held by Subco Amalco shall be cancelled without any repayment of capital in respect thereof;
(iii) the name of Amalco shall be “The Nu-Gro Corporation”;
(iv) the address of the registered office of Amalco shall be 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000, 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0;
(v) there shall be no restriction on the business Amalco may carry on or on the powers it may exercise;
(vi) Amalco shall be authorized to issue will an unlimited number of common shares (“Amalco Common Shares”) and an unlimited number of preferred shares, issuable in series, in each case having the rights, privileges, restrictions and conditions set out in Appendix 3 hereto;
(vii) the minimum number of directors of Amalco shall be unlimited; one and the maximum number of directors of Amalco shall be ten (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder10), free and clear the initial number shall be two (2);
(viii) the directors of all Encumbrances, for one (1) New Common Share and one tenth (1/10) Amalco shall be the directors of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down Subco Amalco immediately prior to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, Effective Time; and:
(Aix) the holders by-laws of PHM Shares will cease to Amalco shall be substantially the holders thereof and cease to have any rights or privileges same as holders the by-laws of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurSubco Amalco.
Appears in 2 contracts
Samples: Arrangement Agreement (United Industries Corp), Amending Agreement (United Industries Corp)
The Arrangement. Commencing and effective as at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will shall be deemed to occur sequentially in the following order without any further act or formality required on the part of any Person: person, except as otherwise expressly provided herein:
(a) each Nomad RSU outstanding immediately prior to the Effective Time, whether vested or unvested, shall immediately vest to the fullest extent, and such Nomad RSU shall be deemed to be transferred and disposed of by the holder thereof to the Company (free and clear of all Liens) and cancelled in exchange for a cash payment equal to the value of the Consideration payable for the Nomad Share that would have been issued pursuant to the vesting of such Nomad RSU immediately prior to the Effective Time less any amounts withheld pursuant to Section 4.5 and each such holder’s name shall be removed from each applicable register and all agreements relating to the Nomad RSUs shall be terminated and shall be of no further force and effect;
(b) each Nomad PSU, whether vested or unvested, shall be deemed to be vested to the fullest extent, and such Nomad PSU shall be deemed to be transferred and disposed of by the holder thereof to the Company (free and clear of all Liens) and cancelled in exchange for a cash payment equal to the value of the Consideration payable for the Nomad Share that would have been issued pursuant to the vesting of such Nomad PSU immediately prior to the Effective Time less any amounts withheld pursuant to Section 4.5 and each such holder’s name shall be removed from each applicable register and all agreements relating to the Nomad PSUs shall be terminated and shall be of no further force and effect;
(c) each Nomad DSU shall, without any further action by or on behalf of the holder thereof, be deemed to be transferred by such holder to the Company in exchange for a cash payment equal to the value of the Consideration payable for a Nomad Share, less any less any amounts withheld pursuant to Section 4.5, and each Nomad DSU shall immediately be cancelled;
(d) immediately prior to the exchange set forth in Section 3.1(e) below, each Dissent Securities held by Dissenting Securityholders will Share shall be and shall be deemed to have been transferred by the holder thereof, without any further act or formality on its part, to PHMthe Company (free and clear of any liens, charges or encumbrances of any nature whatsoever) and cancelled and the Company shall thereupon be obligated to pay the amount therefor determined and payable in accordance with Article 5, and: :
(i) each such Dissenting Securityholder will Nomad Shareholder shall cease to be, and shall be deemed to cease to be, the holder of such Dissent Share and to have any rights as a PHM Securityholder Nomad Shareholder other than the right to be paid the fair value by PHMthe Company for such Dissent Share as set out in Section 5.1 out of reserves established by the Company therefore; and
(ii) such Dissenting Nomad Shareholder’s names shall be, and shall be deemed to be, removed from the register of Nomad Shareholders maintained by or on behalf of the Company;
(e) each Nomad Share (excluding any Dissent Share) shall be and shall be deemed to be transferred and assigned by the holder thereof, without any further act or formality on its part, to the Purchaser (free and clear of any liens, charges or encumbrances of any nature whatsoever), in exchange for the Consideration, and:
(i) each holder of such Nomad Shares shall cease to be, and shall be deemed to cease to be, the holder thereof and to have any rights as a Nomad Shareholder other than the right to be paid the Consideration per Nomad Share in accordance with the Dissent Rights, the fair value this Plan of such Dissent Securities; Arrangement;
(ii) the Dissenting Securityholder's name will of each such holder shall be, and shall be deemed to be, removed as the holder of such Dissent Securities from the central securities register of PHMNomad Shareholders maintained by or on behalf of the Company; and
(iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will Purchaser shall be deemed to have executed be the transferee of such Nomad Shares (free and delivered all consentsclear of any liens, releases, assignments charges or encumbrances of any nature whatsoever) and waivers, statutory the register of Nomad Shareholders maintained by or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms on behalf of the PHM Company shall be, and shall be deemed to be, revised accordingly;
(f) each Nomad Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised outstanding immediately prior to the Effective Time will be deemed Time, whether vested or unvested, shall immediately vest to be surrendered the fullest extent and shall be cancelled exchanged for a fully vested option (without any action on a “Replacement Option”) to purchase from the part Purchaser such number of Purchaser Shares (rounded down to the nearest whole number) equal to: (A) the Exchange Ratio, multiplied by (B) the number of Nomad Shares subject to such Nomad Option immediately prior to the Effective Time, at an exercise price per Purchaser Share (rounded up to the nearest whole cent) equal to (M) the exercise price per Nomad Share otherwise purchasable pursuant to such Nomad Option immediately prior to the Effective Time, divided by (N) the Exchange Ratio, exercisable until the earlier of (Y) the date that is 18 (eighteen) months following the Effective Date notwithstanding the termination of the holder of the PHM Replacement Option on or after the Effective Time and (Z) the original expiry date of such Nomad Option). Except as set out above, all other terms and conditions of such Replacement Option, including the conditions to and manner of exercising, will be the same as the Nomad Option so exchanged, and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will shall be governed by the terms of the New PHM Nomad Option Plan or Nomad Legacy Option Plan, as applicable, and will have: (1any document evidencing a Nomad Option shall thereafter evidence and be deemed to evidence such Replacement Option. It is intended that the provisions of subsection 7(1.4) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price RatioTax Act apply to any such exchange. Therefore, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05the Replacement Option In-The-Money Amount in respect of a Replacement Option exceeds the Nomad Option In-The-Money Amount in respect of the Nomad Option, the exercise price per Purchaser Share of such Replacement Option will be rounded up increased accordingly with effect at and from the Effective Time by the minimum amount necessary to $0.05; provided that, none ensure that the Replacement Option In-The-Money Amount in respect of the New PHM Options Replacement Option does not exceed the Nomad Option In-The-Money Amount in respect of the Nomad Option;
(g) Purchaser shall cause any other transaction, if any, determined by the Parties, acting reasonably, to be made in connection with the Arrangement in accordance with the Arrangement Agreement to be effectuated, including one or Newco Options more amalgamations of the Company (or any resulting person in any such amalgamation) with one or more wholly owned subsidiaries of Purchaser; and
(h) each Electing Affiliate and the Purchaser shall be deemed to be and shall be bound by a Registration Rights Agreement and each Registration Rights Agreement shall become effective in accordance with its terms without the need for any further act or formality. The exchanges and cancellations provided for in this Section 3.1 will be exercisable until, subsequent deemed to occur on the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such notwithstanding that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 certain of the Tax Act, which organization will occur in procedures related thereto are not completed until after the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurEffective Date.
Appears in 2 contracts
Samples: Arrangement Agreement (Sandstorm Gold LTD), Arrangement Agreement (Nomad Royalty Co Ltd.)
The Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur in the following order without any further act or formality on the part of any Person: (a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: formality:
(i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than The holders of the right to be paid by PHM, in accordance with the Dissent RightsOrezone 2008 Options, the fair value of such Dissent Securities; Orezone Convertible Debenture and the Orezone Warrants shall not be entitled to receive Orezone Shares upon the exercise thereof.
(ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Each Orezone 2008 Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised outstanding immediately prior to the Effective Time will Time, whether vested or not, shall remain outstanding in accordance with its terms which provide that such Orezone 2008 Option may be deemed to be surrendered and shall be cancelled (without any action on the part of exercised by the holder of thereof at any time up to and including (but not after) the PHM Option)date that is 30 days after the Effective Time.
(iii) The Orezone Warrants, and each agreement relating if outstanding immediately prior to each PHM Option 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 no further force the principal and effectinterest owing thereunder cash and, and: (i) in exchangeas to the remaining 50 per cent the principal and interest owing thereunder, each Former PHM Optionholder will be entitled to receive IAMGOLD Shares on the following: (A) for each PHM Option registered terms and conditions set out in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one Convertible Debenture Waiver Agreement.
(1v) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will Orezone shall undertake a reorganization of capital within the meaning of Section section 86 of the Tax ActAct as follows, which organization will occur and in the following order: (i) the identifying name :
A. The authorized capital of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares Orezone will be amended to provide that by:
I. re-designating the Orezone Shares as Class B Shares and each PHM certificate representing such an outstanding Orezone Share shall, as and from the time such re-designation is entitled to two votes at any meeting effective, represent a Class B Share; and
II. the creation of an unlimited number of Class A Shares; and the shareholders articles of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will Orezone shall be deemed to be amended accordingly; (ii) the New Common Shares
B. Each issued Class B Share, being shares without par valueother than those held by Dissenting Orezone Shareholders, will be created as exchanged with Orezone for one Class A Share and ● New Orezone Shares.
C. Each issued Class B Share held by a classDissenting Orezone Shareholder (for greater certainty, being an Orezone Shareholder who has complied with the identifying name 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 Common 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 “Common SharesIAMGOLD 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 maximum number exercise price per IAMGOLD Share subject to any IAMGOLD Replacement Option shall be equal to the quotient of New Common (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 which PHM 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 unlimitedheld within 18 months after the Effective Date; (iii) each outstanding PHM Share will and
O. the first directors of IAMGOLD Amalco following the Amalgamation shall be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Sharesl; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurforgoing occurs.
Appears in 2 contracts
Samples: Arrangement Agreement (Orezone Resources Inc), Arrangement Agreement (Iamgold Corp)
The Arrangement. Commencing at At the Effective Time, except as otherwise noted hereinTime on the Effective Date, the following will occur and will be deemed to occur in the following order sequence without any further authorization, act or formality on the part of by Cardero, Coalhunter or any Person: other person:
(a) all Dissent Securities each of the issued and outstanding Coalhunter Shares, other than those held by Dissenting Securityholders Shareholders and Cardero will be deemed to be acquired by Cardero, free from any claims, in exchange for the issuance by Cardero of 0.80 Cardero Shares (the “Exchange Ratio”) provided that the aggregate number of Cardero Shares issuable to any Coalhunter Shareholder, if calculated to include a fraction of a Cardero Share, will be rounded downwards to the nearest whole Cardero Share;
(b) each Coalhunter Shareholder, other than Dissenting Shareholders and Cardero, will be deemed to have transferred all Coalhunter Shares held by him, her or it to Cardero and Cardero will be deemed to have issued the Cardero Shares referred to in section 3.1(a) in exchange therefor;
(c) the Coalhunter Shares owned by each Dissenting Shareholder, at or prior to the Coalhunter Meeting in accordance with Article 4 below, will be, and will be deemed to be, transferred to Coalhunter for cancellation and cancelled contemporaneously with the acquisition by Cardero of Coalhunter Shares pursuant to Section 3.1 and such Dissenting Shareholders will thereupon have no rights or entitlements with respect to those Coalhunter Shares, except as provided in Article 4 and except to be paid fair value for their Coalhunter Shares by Coalhunter;
(d) each Coalhunter Shareholder, other than Cardero, will cease to be a holder of Coalhunter Shares and the name of each such Coalhunter Shareholder will be removed from the central securities register of Coalhunter as of the Effective Date;
(e) the certificate representing each Coalhunter Share, other than Coalhunter Shares held by Cardero, will be deemed to have been transferred to PHM, and: cancelled as of the Effective Date;
(if) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder Coalhunter Shareholder, other than the right to be paid by PHMCardero, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer implement and assign such Dissent Securities; carry out the Arrangement;
(bg) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time Cardero will be and will be deemed to be surrendered the transferee of all Coalhunter Shares (other than Coalhunter Shares owned by Cardero), free of all liens, claims and shall Encumbrances, and will be cancelled (without any action on entered in the part central securities register of Coalhunter as the holder of such Coalhunter Shares as of the PHM OptionEffective Date;
(h) each outstanding Coalhunter Option held by a person that will, following the Effective Date, continue to be eligible to hold an incentive stock option under the Cardero Share Option Plan, will entitle the Coalhunter Option holder to receive (and such holder shall be deemed to accept), Cardero Shares (in accordance with the terms and each agreement relating to each PHM conditions of the Cardero Share Option will be terminated and of no further force and effectPlan), and: such that:
(i) in exchangesubject to further adjustments prior to exercise, on exercise of each Former PHM Optionholder Coalhunter Option, the holder will be entitled to receive acquire, and will accept in lieu of the following: (A) for each PHM Option registered in the name number of an Eligible PHM Optionholder that is outstanding Coalhunter Shares to which such holder was entitled immediately before the Effective TimeDate, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms number of the New PHM Option Plan and will have: (1) an exercise price per New Common Share Cardero Shares equal to the exercise price product of (A) the applicable PHM number of Coalhunter Shares subject to the Coalhunter Option immediately before the Effective Date multiplied by (B) the New PHM Exercise Price Exchange Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Cardero Common Share, then the number of Newco Cardero Shares otherwise issued on exercise of the Coalhunter Option will be rounded down to the nearest whole number of Newco Cardero Shares;
(ii) each such Coalhunter Option will have an exercise price per Cardero Common Share, payable to Cardero, denominated in the same currency as applicable to such Coalhunter Option (rounded up to the nearest one-hundredth of a dollar) equal to 125% of the current exercise price per Coalhunter Share;
(iii) each such Coalhunter Option will be exercisable into Cardero Shares for a period of two years following the Effective Date and will be subject to the PHM following vesting provisions:
(A) 25% of the Cardero Shares subject to such Coalhunter Option will thereupon be cancelledvested at six months following the Effective Date;
(B) an additional 25% of the Cardero Shares subject to such Coalhunter Option will be vested at 12 months following the Effective Date; and
(C) the balance of the Cardero Shares subject to such Coalhunter Option will be vested at 18 months following the Effective Date;
(i) in accordance with the terms of the Coalhunter Options, andeach outstanding Coalhunter Option held by a person that will not, following the Effective Date, be eligible to hold an incentive stock option under the Cardero Share Option Plan will become exercisable for Cardero Shares in accordance with the terms of such Coalhunter Option and then immediately be deemed to be acquired by Cardero at the Effective Date for cash in an amount equal to the product of: (A) the holders difference between the exercise price of PHM Shares will cease to be the holders thereof Coalhunter Option and cease to have any rights or privileges as holders of PHM Shares; $1.52 multiplied by (B) the holders’ names number of Coalhunter Shares subject to such Coalhunter Option; and
(j) if prior to the Effective Time, the TSX has: (i) not accepted notice with respect to the issuance of Cardero Shares on exercise of any Coalhunter Option then outstanding; or (ii) imposed escrow, pooling or resale restrictions on such Coalhunter Option (or the underlying Cardero Shares) (collectively, the “Restricted Securities”), each such Coalhunter Option will be removed from become exercisable for Cardero Shares in accordance with the securities register terms of PHM; such Coalhunter Option and provided that none of the foregoing will occur or then immediately be deemed to occur unless all be acquired by Cardero at the Effective Date for cash in an amount equal to the product of: (A) the difference between the exercise price of the foregoing occurs or is deemed Coalhunter Option and $1.52 multiplied by (B) the number of Coalhunter Shares subject to occursuch Coalhunter Option.
Appears in 2 contracts
Samples: Arrangement Agreement (Cardero Resource Corp.), Arrangement Agreement (Cardero Resource Corp.)
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur in the following order without any further act or formality on the part of any Person: (a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: formality:
(i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option PlanLevon Options, including any agreement made thereunderDissent Options, each PHM Option that has not been duly exercised prior to outstanding at the Effective Time will be deemed to shall be surrendered and transferred to Levon and cancelled and the holders of Dissent options shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: amount described in subsection (Aiii)(B) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; below;
(ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Levon Shares will shall be changed from “Common SharesCommon” shares to “Class A Common SharesCommon” shares, there shall be created and attached to the Levon Shares the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as right set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) Arrangement, the New Common Levon Shares, being shares without par value, will shall be created as a class, the identifying name of the New Common Levon Shares will shall be “Common Shares”Common” shares, and the maximum number of New Common Levon Shares which PHM will be authorized Levon is authorised to issue will shall be unlimited; , there shall be added to Levon’s articles Part 26 thereof as set out in the said Appendix “A”, and Levon’s notice of articles shall be altered accordingly.
(iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder)Levon Shareholder shall transfer to Levon, free and clear of any Lien, all Encumbrancesits Levon Shares and:
(A) in exchange for each Levon Share, for other than a Dissent Share, Levon shall issue as fully paid or transfer to the Levon Shareholder, one (1) New Common Levon Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance 0.5 of a fraction Spinco Share;
(B) for each Dissent Share or Dissent Option, the Dissenting Securityholder shall be entitled to receive from Levon an amount agreed upon with Levon or equal to the fair value thereof determined in accordance with the Dissent Rights;
(C) the stated capital of a Newco Share, then the number of Newco New Levon Shares otherwise issued will be rounded down an amount equal to the nearest whole number paid-up capital of Newco the Levon Shares, less the Fair Market Value of the Spinco Shares distributed on such exchange; and
(iv) and the PHM Shares will thereupon be cancelled, and: with respect to each Levon Share:
(A) the holders of PHM Shares will Levon Shareholder thereof shall cease to be the holders thereof Levon Shareholder of such Levon Share and cease to have any rights or privileges as holders the name of PHM Shares; (B) the holders’ names will Levon Shareholder shall be removed from the central securities register of PHMLevon with respect to such Levon Share;
(B) such Levon Share shall be cancelled; and
(C) other than with respect to Dissent Shares, the Levon Shareholder shall be registered in the central securities register of Levon as the holder of New Levon Shares as set out in paragraph 3(a)(iv)(A);
(v) The SciVac Securityholders will transfer the SciVac Shares, the Capital Notes and provided that none the Loans to Levon and in exchange Levon will issue to or to the order of the foregoing will occur SciVac Securityholders, the Acquired Levon Shares;
(vi) the Class A Common shares in the authorized share structure of Levon, as a class, shall be eliminated from the authorized share structure of Levon, the special right attached to such shares and Part 26 of Levon’s articles shall be deleted and Levon’s notice of articles shall be altered accordingly; and
(vii) The name of Levon is changed to SciVac Inc. or such other name as may be deemed acceptable to occur unless all of SciVac and the foregoing occurs or is deemed to occurRegistrar.
Appears in 2 contracts
Samples: Arrangement Agreement (Levon Resources Ltd.), Arrangement Agreement
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case effective as at one minute intervals starting at the Effective Time, without any further authorization, act or formality of or by Fission, Xxxxxxx or any other person:
(a) At the Effective Time:
(i) each Fission Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Liens, to Xxxxxxx and Xxxxxxx shall thereupon be obliged to pay the part of any Person: (a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, amount therefor determined and payable in accordance with Article 5 hereof, and the Dissent Rights, the fair value name of such Dissent Securities; (ii) the Dissenting Securityholder's name will holder shall be removed as the holder of such Dissent Securities from the central securities register of PHMFission as a holder of Fission Shares and Xxxxxxx shall be recorded as the registered holder of the Fission Shares so transferred and shall be deemed to be the legal owner of such Fission Shares;
(ii) each outstanding Fission Share (other than Fission Shares held by Xxxxxxx or any affiliate thereof or dealt with pursuant to subsection 3.1(a)(i) hereof) will, without further act or formality by or on behalf of a holder of Fission Shares, be irrevocably assigned and transferred by the holder thereof to Xxxxxxx (free and clear of all Liens) in exchange for 1.26 Xxxxxxx Shares (subject to adjustment of the Exchange Ratio) and $0.0001 in cash for each Fission Share held, and
A. the holders of such Fission Shares shall cease to be the holders thereof and to have any rights as holders of such Fission Shares other than the right to receive 1.26 Xxxxxxx Shares (subject to adjustment of the Exchange Ratio) and $0.0001 in cash per Fission Share in accordance with this Plan of Arrangement;
B. such holders’ name shall be removed from the register of the Fission Shares maintained by or on behalf of Fission; and
X. Xxxxxxx shall be deemed to be the transferee and the legal and beneficial holder of such Fission Shares (free and clear of all Liens) and shall be entered as the registered holder of such Fission Shares in the register of the Fission Shares maintained by or on behalf of Fission.
(iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM each Fission Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised outstanding immediately prior to the Effective Time will be deemed exchanged for an option (each, a “Xxxxxxx Replacement Option”) to be surrendered and shall be cancelled (without any action on purchase from Xxxxxxx the part number of Xxxxxxx Shares equal to the holder product of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM the number of Fission Shares subject to the Fission Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, and (B) the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Exchange Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco ShareXxxxxxx Share on any particular exercise of Xxxxxxx Replacement Options, then the number of Newco Xxxxxxx Shares otherwise issued will shall be rounded down to the nearest whole number of Newco Xxxxxxx Shares. The exercise price per Xxxxxxx Share subject to any such Xxxxxxx Replacement Option shall be an amount (rounded to the nearest fourth decimal place) and equal to the PHM Shares will thereupon be cancelled, and: quotient of (A) the holders of PHM Shares will cease exercise price per Fission Share under the exchanged Fission Option immediately prior to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; Effective Time divided by (B) the holders’ names Exchange Ratio (provided that the aggregate exercise price payable on any particular exercise of Xxxxxxx Replacement Options shall be rounded up to the nearest whole cent). It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to the aforesaid exchange of options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Xxxxxxx Replacement Option will be removed from adjusted such that the securities register of PHM; and provided that none In-The-Money Amount of the foregoing Xxxxxxx Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the Fission Option immediately before the exchange. All terms and conditions of a Xxxxxxx Replacement Option, including the term to expiry, conditions to and manner of exercising, will occur or be the same as the Fission Option for which it was exchanged, and shall be governed by the terms of the Fission Option Plan and any document evidencing a Fission Option shall thereafter evidence and be deemed to occur unless evidence such Xxxxxxx Replacement Option.
(iv) each Fission Share held by Xxxxxxx shall be transferred to Subco in consideration of the issue by Subco to Xxxxxxx of one common share of Subco for each Fission Share so transferred, and the amount added to the stated capital of the Subco common shares will be equal to the paid up capital (as such term is defined in the Tax Act) of the Fission Shares so transferred;
(v) the aggregate stated capital in respect of the Fission Shares shall be reduced to $1.00 without any repayment of capital in respect thereof;
(vi) Fission will file an election with the CRA to cease to be a public corporation for the purposes of the Tax Act;
(vii) Fission and Subco shall amalgamate to form one corporate entity (“Amalco”) with the same effect as if they had amalgamated under Section 181 of the CBCA, except that the legal existence of Subco shall not cease and Subco shall survive;
(viii) without limiting the generality of subsection 3.1(a)(vii), the separate legal existence of Fission shall cease without Fission being liquidated or wound up and Fission and Subco shall continue as one company and the property of Fission shall become the property of Subco;
(ix) from and after the Effective Date,:
A. Amalco will own and hold all property of Fission and Subco and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired by such amalgamation, and all liabilities and obligations of Fission and Subco, whether arising by contract or otherwise, may be enforced against Amalco to the same extent as if such obligations had been incurred or contracted by it;
B. Amalco will continue to be liable for all of the foregoing occurs liabilities and obligations of Fission and Subco;
C. all rights, contracts, permits and interests of Fission and Subco will continue as rights, contracts, permits and interests of Amalco as if Fission and Subco continued and, for greater certainty, the amalgamation will not constitute a transfer or is deemed assignment of the rights or obligations of either of Fission or Subco under any such rights, contracts, permits and interests;
D. any existing cause of action, claim or liability to occur.prosecution will be unaffected;
E. a civil, criminal or administrative action or proceeding pending by or against either Subco or Fission may be continued by or against Amalco;
Appears in 1 contract
The Arrangement. Commencing Subject to the terms of the Plan of Arrangement, at the Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur have occurred in the following order without any further act or formality on the part of any Person: formality:
(a) all Dissent Securities YGC will change its name to Yukon-Nevada Gold Corp., or such other name as may be approved by the directors of YGC and Queenstake acting reasonably, subject to Appropriate Regulatory Approval;
(b) each Queenstake Share, other than Queenstake Shares held by Dissenting Securityholders Queenstake Shareholders who have validly exercised Dissent Rights, will be deemed to have been be transferred to PHMYGC and, and: subject to Section 4.2 of the Plan of Arrangement, each such Queenstake Shareholder will receive one New YGC Share for every ten Queenstake Shares held;
(c) each Queenstake Option, to the extent that it has not been exercised, shall subject to Section 4.2 of the Plan of Arrangement, be transferred to YGC in exchange for a New YGC Option to purchase that number of New YGC Shares determined by dividing the number of Queenstake Shares subject to each such Queenstake Option by ten at an exercise price per New YGC Share equal to the exercise price per Queenstake Share of each such Queenstake Option multiplied by ten, with a term to expiry equivalent to the Queenstake Option. If the foregoing calculation results in the option being exercisable for a fraction of a New YGC Share, then the number of New YGC Shares subject to such option shall be rounded down to the nearest whole number of shares and the aggregate exercise price for the option will be reduced by the exercise price for one New YGC Share multiplied by the fractional entitlement. All options issued by YGC on such exchange shall be governed by the New YGC Stock Option Plan;
(d) each Queenstake Warrant, to the extent that it has not been exercised, shall subject to Section 4.2 of the Plan of Arrangement, be transferred to YGC in exchange for a New YGC Warrant to purchase that number of New YGC Shares determined by dividing the number of Queenstake Shares subject to each such Queenstake Warrant by ten at an exercise price per New YGC Share equal to the exercise price per Queenstake Share of each such Queenstake Warrant multiplied by ten, with a term to expiry equivalent to the Queenstake Warrant. If the foregoing calculation results in the warrant being exercisable for a fraction of a New YGC Share, then the number of New YGC Shares subject to such warrant shall be rounded down to the nearest whole number of shares and the aggregate exercise price for the warrant will be reduced by the exercise price for one New YGC Share multiplied by the fractional entitlement. All warrants issued by YGC on such exchange shall be governed by the certificates representing such New YGC Warrants;
(e) with respect to each of the Queenstake Shares, Queenstake Stock Options and Queenstake Warrants transferred to YGC pursuant to the Plan of Arrangement, at the Effective Time, without any further act or formality:
(i) each Dissenting Securityholder will the holder thereof shall cease to have any rights as a PHM Securityholder other than be the right to be paid by PHM, in accordance with the Dissent Rights, the fair value holder of such Dissent Securitiessecurity and the name of the holder thereof shall be removed from the register of such securities of Queenstake; and
(ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to validly transfer and assign such Dissent Securities; (b) notwithstanding security to YGC in accordance with the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; Arrangement.
(iif) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued directors of YGC will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, fixed at ten (10); and:
(Ag) the holders board of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders directors of PHM Shares; (B) the holders’ names YGC will be removed comprised of Xxxxxx Xxxxxxx, Xxxx Xxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxx, E. Xxxx Xxxxxxxxx, Xxx XxxXxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxx, subject to YGC having received consents to act from the securities register of PHM; and provided that none each of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurforegoing.
Appears in 1 contract
The Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur in the following order without any further act or formality on the part of any Person: formality:
(a) all Dissent Securities held by Dissenting Securityholders will be deemed the Amalgamating Corporations shall amalgamate pursuant to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights the CBCA and continue as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding one corporation on the terms prescribed in this Plan of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, Arrangement and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: :
(i) the identifying name property of each Amalgamating Corporation continues to be the PHM Shares will property of Amalco;
(ii) Amalco continues to be changed from “Common Shares” liable for the obligations of each Amalgamating Corporation;
(iii) an existing cause of action, claim or liability to “Class A Common Shares” and prosecution is unaffected;
(iv) a civil, criminal or administrative action or proceeding pending by or against an Amalgamating Corporation may be continued to be prosecuted by or against Amalco;
(v) a conviction against, or ruling, order or judgement in favour of or against, an Amalgamating Corporation may be enforced by or against Amalco; and
(vi) the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting Articles of the shareholders of PHM, and to reflect such amendments PHM’s articles will be Arrangement are deemed to be amended by replacing Section 26.3 the articles of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan incorporation of Arrangement Amalco and PHM’s notice of articles will be the Certificate is deemed to be amended accordingly; the certificate of incorporation of Amalco;
(iib) on the New Common Shares, being shares without par value, will Amalgamation:
(i) all issued and outstanding Sasamat Shares held by Non-Dissenting Shareholders shall be created as a class, exchanged for fully paid and non-assessable KHD Shares such that each Non-Dissenting Shareholder shall receive in exchange for the identifying name of the New Common Shares will be “Common Shares”, and the maximum aggregate number of New Common Sasamat Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on held by the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the Non-Dissenting Shareholder such number of Newco fully paid KHD Shares otherwise issued will be equal to the Share Exchange Ratio multiplied by the aggregate number of Sasamat Shares held by the Non-Dissenting Shareholder, rounded down to the nearest whole number, and a cheque payable to the Non-Dissenting Shareholder equal to the closing price of the KHD Shares on the last trading day before the Effective Date multiplied by, and in lieu of, the fraction of a KHD Share that would otherwise be issuable to the Non-Dissenting Shareholder if the number of KHD Shares was not rounded down to the nearest whole number, provided that any Non-Dissenting Shareholder who is entitled to receive in the aggregate less than one (1) KHD Share shall receive one (1) KHD Share and no other consideration; and
(ii) all issued and outstanding Newco Shares shall be converted on a share for share basis into fully paid and non-assessable Amalco Shares on the basis of one Amalco Share for each one Newco Share;
(c) all Sasamat Shares held by Newco shall be cancelled without any repayment of capital in respect thereof;
(d) the name of Amalco shall be “Sasamat Capital Corporation”;
(e) the registered office of Amalco shall be in the Province of British Columbia;
(f) the authorized capital of Amalco shall consist of an unlimited number of Amalco Shares;
(g) no shares of Amalco may be sold, transferred or otherwise disposed of without the consent of the directors of Amalco expressed by a resolution of the directors and the directors of Amalco are not required to give any reason for refusing to consent to any such sale, transfer or other disposition;
(h) there shall be no restrictions on the business which Amalco is authorized to carry on or the powers which Amalco may exercise;
(i) the by-laws of Newco shall be the by-laws of Amalco until repealed, amended, altered or added to;
(j) the number of directors of Amalco shall be such number not less than one (1) and not more than ten (10) as the Amalco directors may from time to time determine; and
(k) the number of first directors of Amalco shall be two (2) and the PHM Shares will thereupon first directors of Amalco shall be cancelledJxxxx X. Xxxxxx, and: (A) a resident Canadian, having an address at 12532 – 23rd Avenue, White Rock, British Columbia, V4A 2C4 and Mxxxxxx X. Xxxxx, a non-resident Canadian, having an address at Unit 803 — 8xx Xxxxx, Xxxx Xxxxx, Ruttonjee Centre, 10 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx SAR, China, each of whom shall hold office until the holders first annual meeting of PHM Shares will cease to be the holders thereof and cease to have any rights Amalco or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur until his successor is elected or be deemed to occur unless all of the foregoing occurs or is deemed to occurappointed.
Appears in 1 contract
Samples: Arrangement Agreement (KHD Humboldt Wedag International Ltd.)
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following events and transactions set out in Subsections (a) to (h) inclusive will occur and will be deemed to occur in the following order set out below without any further act or formality on formality, and with each event or transaction occurring and being deemed to occur immediately after the part occurrence of any Person: the immediately preceding event or transaction:
(a) all Each Parentco Old Common Share in respect of which a Parentco Shareholder has exercised Dissent Securities held by Dissenting Securityholders Rights and for which the Parentco Shareholder is ultimately entitled to be paid fair value (each a “Dissent Share”) will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as repurchased by Parentco for cancellation in consideration for a PHM Securityholder other than the right debt-claim against Parentco to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder Share in accordance with Article 3 of this Plan of Arrangement, net of any applicable withholding tax, and such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities Share will thereupon be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; ;
(b) notwithstanding the terms The authorized share structure of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time Parentco will be deemed to be surrendered reorganized and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: altered by
(i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) changing the identifying name of the PHM issued and unissued Parentco Old Common Shares will be changed from “Common Sharesshares” to “Class A Common Sharesshares” and amending the special rights and restrictions attached to such shares to provide the holders thereof with two votes in respect of each share held, and
(ii) creating a new class of shares without par value issuable in an unlimited number with the identifying name “Class B Common shares” having special rights and restrictions identical to those attaching to the Parentco Old Common Shares prior to the amendments described in paragraph (b)(i) above;
(c) Parentco will issue 4,000,000 fully paid and non-assessable Parentco New Common Shares to Spinco for an aggregate issue price equal to the fair market value thereof and add an amount equal to such issue price to the capital of the Parentco New Common Shares and in consideration therefor, Spinco will issue the number of fully paid and non-assessable Spinco Common Shares having a fair market value equal to the fair market value of the Parentco New Common Shares received to Parentco for an aggregate issue price equal to the fair market value thereof and add an amount equal to such issue price to the capital of the Spinco Common Shares;
(d) The issued and outstanding Spinco Common Shares will be amended subdivided into that number of Spinco Common Shares equal to provide that each PHM Share is entitled the number of issued and outstanding Parentco Old Common Shares;
(e) Each holder of a Parentco Stock Option will dispose of and be deemed to two votes at any meeting dispose of the shareholders Parentco Stock Option and in consideration therefor will concurrently receive
(i) one Parentco Replacement Stock Option having an exercise price equal to the product obtained by multiplying: (A) the exercise price of PHMthe Parentco Stock Option by (B) the quotient obtained by dividing the 20 Day VWAP of a Parentco New Common Share by the aggregate of the 20 Day VWAP of a Parentco New Common Share and the 20 Day VWAP of a Spinco Common Share, rounded to the nearest whole cent and subject to adjustment as set out below, and
(ii) one Spinco Replacement Stock Option having an exercise price equal to the product obtained by multiplying: (A) the exercise price of the Parentco Stock Option by (B) the quotient obtained by dividing the 20 Day VWAP of a Spinco Common Share by the aggregate of the 20 Day VWAP of a Parentco New Common Share and the 20 Day VWAP of a Spinco Common Share, rounded to the nearest whole cent and subject to adjustment as set out below, and all Parentco Stock Options will thereupon be cancelled (each such disposition, receipt, and cancellation, collectively, an “Option Exchange”), provided that the exercise prices of each Parentco Replacement Stock Option and each Spinco Replacement Stock Option issued pursuant to reflect such amendments PHM’s articles an Option Exchange will be and be deemed to be amended automatically increased if necessary so that the aggregate In the Money Amounts thereof immediately after the Option Exchange does not exceed the In the Money Amount of the exchanged Parentco Stock Option determined immediately before the Option Exchange, with the intention that subsection 7(1.4) of the Tax Act will apply to each Option Exchange;
(f) Each outstanding Parentco Warrant will remain outstanding in accordance with its terms and will, in lieu of being exercisable for one (1) Parentco Old Common Share, be exercisable for:
(i) one (1) Parentco New Common Share having an exercise price equal to the product obtained by replacing Section 26.3 multiplying: (A) the exercise price of PHM’s articles in its entirety with the Parentco Warrant by (B) the quotient obtained by dividing the 20 Day VWAP of a new Section 26.3 as set out in Appendix “A” Parentco New Common Share by the aggregate of the 20 Day VWAP of a Parentco New Common Share and the 20 Day VWAP of a Spinco Common Share, rounded to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; the nearest whole cent, and
(ii) one (1) Spinco Common Share having an exercise price equal to the product obtained by multiplying: (A) the exercise price of the Parentco Warrant by (B) the quotient obtained by dividing the 20 Day VWAP of a Spinco Common Share by the aggregate of the 20 Day VWAP of a Parentco New Common Share and the 20 Day VWAP of a Spinco Common Share, rounded to the nearest whole cent;
(g) Each Parentco Shareholder will dispose of each Parentco Old Common Share held to Parentco and in consideration therefor Parentco will issue or distribute to the Parentco Shareholder
(i) one fully paid and non-assessable Parentco New Common Share having an issue price equal to the fair market value thereof, and
(ii) one Spinco Common Share (the “Share Exchange”), and, in respect thereof,
(iii) the name of each Parentco Shareholder will be removed from the central securities register for the Parentco Old Common Shares and added to the central securities register for the Parentco New Common Shares and the Spinco Common Shares as the holder of the number of Parentco New Common Shares and Spinco Common Shares, being shares without par valuerespectively, received pursuant to the Share Exchange,
(iv) the Parentco Old Common Shares will be created as a classcancelled and the capital in respect of such shares will be reduced to nil, and
(v) an amount equal to the capital of the Parentco Old Common Shares immediately before the Share Exchange less the aggregate fair market value of the Spinco Common Shares distributed on the Share Exchange will be added to the capital in respect of the Parentco New Common Shares issued on the Share Exchange;
(h) The authorized share structure of Parentco will be reorganized and altered by
(i) eliminating the Parentco Old Common Shares from the authorized share structure of Parentco, and
(ii) changing the identifying name of the issued and unissued Parentco New Common Shares will be from “Class B Common shares” to “Common Sharesshares”, and the maximum ;
(i) Parentco will issue to Newcrest a number of fully paid and non-assessable Parentco New Common Shares which PHM having an aggregate issue price equal to CAD$19,074,425 such that immediately after the issuance, Newcrest will own 19.9% of the issued and outstanding Parentco New Common Shares and, in respect thereof:
(i) Newcrest will be authorized added to the central securities register for the Parentco New Common Shares as the holder of that number of Parentco New Common Shares, and
(ii) an amount equal to the issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part price of the PHM Shareholder), free and clear of all Encumbrances, for one (1) Parentco New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise so issued will be rounded down added to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none capital in respect of the foregoing Parentco New Common Shares;
(j) Parentco will occur or be deemed change its name to occur unless all of the foregoing occurs or is deemed “Azucar Minerals Ltd.”; and
(k) Spinco will change its name to occur.“Almadex Minerals Ltd.”
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality on the part of any Person: :
(a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: at the Effective Time:
(i) each Dissenting Securityholder Share held by an Aphria Dissenting Shareholder who is ultimately determined to be entitled to be paid the fair value of the Dissenting Shares in respect of which such Aphria Dissenting Shareholder has exercised Dissent Rights shall be, and shall be deemed to be, transferred by the holder thereof, without any further act or formality on its part, to Aphria (free and clear of all Liens) and such Aphria Dissenting Shareholder will cease to be the holder thereof or to have any rights as a PHM Securityholder holder in respect of such Dissenting Share other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesDissenting Share determined and payable in accordance with Article 4; and
(ii) at the same time as the step in Section 3.1(b)(i) occurs, the name of each Aphria Dissenting Securityholder's name will Shareholder shall be removed from the register of the Aphria Shares and such Dissenting Shares shall be automatically cancelled as of the Effective Date;
(b) at the same time as the steps in Section 3.1(a) occur:
(i) each Aphria Share outstanding immediately prior to the Effective Time (other than Dissenting Shares held by Aphria Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of their Dissenting Shares as determined in accordance with Article 4), shall be, and shall be deemed to be, transferred by the holder thereof to Tilray (free and clear of all Liens) in exchange for issuance of the Share Consideration;
(ii) at the same time as the step in Section 3.1(b)(i) occurs, the holder of each Aphria Share transferred to Tilray pursuant to Section 3.1(b)(i) shall cease to be the holder thereof, or to have any rights as a holder thereof other than the right to receive the Share Consideration issuable in respect of each Aphria Share held pursuant to Section 3.1(b)(i) and shall be removed from the register of the Aphria Shares and legal and beneficial title to each such Dissent Securities from Aphria Share shall be transferred to Tilray and Tilray will be and be deemed to be the transferee and legal and beneficial owner of such Aphria Share (free and clear of any Liens) and will be entered in the central securities register of PHMAphria as the sole holder thereof; and
(iii) the Dissent Securities Tilray will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered holder of all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Planoutstanding Xxxxxx Xxxxxx;
(c) immediately after the steps in Section 3.1(b) occur:
(i) each Aphria Option, including other than any agreement made thereunderContinuing Aphria Option, each PHM Option that to the extent it has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part as of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (by the holder thereof, without any further act or formality on the part of the PHM Shareholder), and free and clear of all EncumbrancesLiens, for one a stock option (1a “Replacement Option”) New Common Share and one tenth (1/10) to purchase a number of one Newco Share (provided that if Tilray Shares equal to the foregoing would result in product of the issuance of a fraction of a Newco ShareExchange Ratio, then rounded down to two decimal places, multiplied by the number of Newco Aphria Shares otherwise issued will be issuable on exercise of such Aphria Option immediately prior to the Effective Time (rounded down to the nearest next whole number of Newco Tilray Shares) for an exercise price per Tilray Share (rounded up to the nearest whole cent) equal to the exercise price per share of such Aphria Option immediately prior to the Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and the PHM Shares will Aphria Options shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Options shall be the same as the terms and conditions of the Aphria Option for which it is exchanged except that such Replacement Options shall be governed by the terms and conditions of the Tilray Plan and: , in the event of any inconsistency or conflict the Tilray Plan shall govern. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria Options by Aphria Securityholders resident in Canada who acquired Aphria Options by virtue of their employment. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option held by such an Aphria Securityholder will be increased such that the In-The-Money Amount of the Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the Aphria Option immediately before the exchange. For any Aphria Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, it is intended that such exchange will comply with Treasury Regulation Section 1.424(1)(a). For any Aphria Option that is a nonqualified option held by a US taxpayer, it is intended that such exchange will be implemented in a manner intended comply with Section 409A of the Code. Any document previously evidencing the Aphria Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Options shall be issued;
(ii) each Continuing Aphria Option shall, without any further action on the part of any holder of any Continuing Aphria Option, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Aphria Omnibus Incentive Plan, the terms of the Continuing Aphria Options shall be amended so as to substitute for the Aphria Shares subject to such Continuing Aphria Options such number of Tilray Shares equal to (A) the holders number of PHM Aphria Shares will cease subject to be the holders thereof and cease Continuing Aphria Options immediately prior to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur.Effective Time, multiplied by
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at the Effective Time, except as each of the transactions or events set out below shall, unless otherwise noted hereinspecifically provided in this Section 3.1, the following will occur and will be deemed to occur in the following order sequence and immediately following the immediately preceding transaction or event, in each case without any further authorization, act or formality on the part of any Person: :
(1) each Dissent Share held by a Dissenting Shareholder shall be, and shall be deemed to be, transferred by the holder thereof to the Company for cancellation and shall be cancelled, and upon such transfer:
(a) all Dissent Securities held by such Dissenting Securityholders will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder Shareholder will cease to be the holder of such Dissent Share or to have any rights as a PHM Securityholder holder in respect of such Dissent Share, other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesShare determined and payable in accordance with Article 4; and
(iib) the Dissenting Securityholder's name will former holders of such Dissent Shares shall be removed as from the Company’s central securities register for the Company Shares in respect of such Dissent Shares;
(2) subject to Section 5.3, each Company Multiple Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the MVS Consideration, and upon such exchange:
(a) the former holder of such Dissent Securities exchanged Company Multiple Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the MVS Consideration issuable in respect of such Company Multiple Voting Share pursuant to this Section 3.1(2);
(b) the former holders of such exchanged Company Multiple Voting Shares shall be removed from the Company’s central securities register for the Company Multiple Voting Shares;
(c) the former holders of such exchanged Company Multiple Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(2); and
(d) the Purchaser will be, and will be deemed to be, the legal and beneficial owner of such transferred Company Multiple Voting Shares and will be entered in the central securities register of PHM; the Company as the sole holder thereof;
(iii3) concurrently with the exchange of Company Multiple Voting Shares pursuant to Section 3.1(2), there shall be added to the capital of the Purchaser Subordinate Voting Shares, in respect of the Purchaser Subordinate Voting Shares issued pursuant to Section 3.1(2), an amount equal to the product obtained when (i) the paid-up capital of the Company Multiple Voting Shares immediately prior to the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Multiple Voting Shares (excluding any Dissent Securities will be cancelled; Shares) outstanding immediately prior to the Effective Time, and (ivB) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; denominator of which is the number of Company Multiple Voting Shares (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunderDissent Shares) outstanding immediately prior to the Effective Time;
(4) subject to Section 5.3, each PHM Option that has not been duly exercised Company Super Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the SVS Consideration, and upon such exchange:
(a) the former holder of such exchanged Company Super Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the SVS Consideration issuable in respect of such Company Super Voting Share pursuant to this Section 3.1(4);
(b) the former holders of such exchanged Company Super Voting Shares shall be removed from the Company’s central securities register for the Company Super Voting Shares;
(c) the former holders of such exchanged Company Super Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(4); and
(d) the Purchaser will be, and will be deemed to be, the legal and beneficial owner of such transferred Company Super Voting Shares and will be surrendered and entered in the central securities register of the Company as the sole holder thereof;
(5) concurrently with the exchange of Company Super Voting Shares pursuant to Section 3.1(4), there shall be cancelled (without any action on added to the part capital of the holder Purchaser Subordinate Voting Shares, in respect of the PHM OptionPurchaser Subordinate Voting Shares issued pursuant to Section 3.1(4), and each agreement relating an amount equal to each PHM Option will be terminated and of no further force and effect, and: the product obtained when (i) in exchangethe paid-up capital of the Company Super Voting Shares immediately prior to the Effective Time, each Former PHM Optionholder will be entitled to receive the following: is multiplied by (ii) a fraction, (A) for each PHM Option registered in the name numerator of an Eligible PHM Optionholder that which is the number of Company Super Voting Shares (excluding any Dissent Shares) outstanding immediately before prior to the Effective Time, and (B) the denominator of which is the number of Company Super Voting Shares (including any Dissent Shares) outstanding immediately prior to the Effective Time;
(6) subject to Section 5.3, each Company Subordinate Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the Share Consideration, rounded down to the nearest whole Purchaser Subordinate Voting Share, and upon such exchange:
(a) the former holder of such exchanged Company Subordinate Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the Share Consideration issuable in respect of such Company Subordinate Voting Share pursuant to this Section 3.1(6);
(b) the former holders of such exchanged Company Subordinate Voting Shares shall be removed from the Company’s central securities register for the Company Subordinate Voting Shares;
(c) the former holders of such exchanged Company Subordinate Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(6); and
(d) the Purchaser will receive one be, and will be deemed to be, the legal and beneficial owner of such transferred Company Subordinate Voting Shares and will be entered in the central securities register of the Company as the sole holder thereof;
(17) New PHM concurrently with the exchange of Company Subordinate Voting Shares pursuant to Section 3.1(6), there shall be added to the capital of the Purchaser Subordinate Voting Shares, in respect of the Purchaser Subordinate Voting Shares issued pursuant to Section 3.1(6), an amount equal to the product obtained when (i) the paid-up capital of the Company Subordinate Voting Shares immediately prior to the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Subordinate Voting Shares (excluding any Dissent Shares) outstanding immediately prior to the Effective Time, and (B) the denominator of which is the number of Company Subordinate Voting Shares (including any Dissent Shares) outstanding immediately prior to the Effective Time;
(8) the terms of each Company Option outstanding immediately prior to purchase from PHM one (1) New Common Share for every PHM Share that could the Effective Time shall be purchased under the PHM adjusted so that, upon exercise of such Company Option, and each the holder shall, upon payment of the exercise price under such New PHM Company Option, be entitled to receive, in substitution for the number of Company Shares subject to such Company Option, that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Shares subject to such Company Option will immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio. For greater certainty, the Company Options shall not be exchanged or otherwise replaced by this Plan of Arrangement, and, subject to this Section 3.1(8), shall continue to be governed by the Company Equity Incentive Plan on the same terms and conditions as were applicable to such Company Options immediately prior to the Effective Time. Notwithstanding the foregoing, if necessary to satisfy the requirements of subsection 7(1.4) of the Tax Act, the exercise price of a Company Option adjusted in accordance with the foregoing shall be increased such that the In-The-Money Amount of the Company Option immediately after such adjustment does not exceed the In-The-Money Amount of the Company Option immediately before such adjustment. For any Company Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, it is intended that such adjustment will comply with Treasury Regulation Section 1.424-1(a). For any Company Option that is a nonqualified option held by a U.S. taxpayer, it is intended that such adjustment will be implemented in a manner intended comply with Section 409A of the Code;
(9) the terms of each Company RSU outstanding immediately prior to the New PHM Option Effective Time shall be adjusted so that, upon vesting of such Company RSU, the holder shall be entitled to receive, instead of the number of Company Shares underlying such Company RSU, that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Shares underlying such Company RSU immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio. For greater certainty, the Company RSUs shall not be exchanged or otherwise replaced by this Plan of Arrangement, and, subject to this Section 3.1(9), shall continue to be governed by the Company Equity Incentive Plan on the same terms and conditions as were applicable to such Company RSUs immediately prior to the Effective Time;
(10) each Company Warrant, other than any Certificated Company Warrant or Company MVS Warrant, outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, exchanged in accordance with its terms for a Purchaser warrant governed by the Purchaser Replacement Warrant Indentures (each, a “Replacement Warrant”) which will have: (1) entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Subordinate Voting Shares issuable on exercise of such exchanged Company Warrant immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio, at an exercise price per New Common Purchaser Subordinate Voting Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that per share under such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent exchanged Company Warrant immediately prior to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that Time divided by the New PHM Exercise Price Adjusted Exchange Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing exercise of Replacement Warrants by a holder would otherwise result in the issuance aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Newco Purchaser Subordinate Voting Share, then the aggregate number of Newco Purchaser Subordinate Voting Shares otherwise issued will issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Newco Shares) Replacement Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the PHM Shares will same as the terms and conditions of such exchanged Company Warrant, and such exchanged Company Warrant shall thereupon be cancelledcancelled. Any document previously evidencing such Company Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued;
(11) each Company Certificated Warrant outstanding immediately prior to the Effective Time shall be, and: and shall be deemed to be, adjusted in accordance with its terms for a Purchaser warrant (each, a “Replacement Certificated Warrant”) which will entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Subordinate Voting Shares issuable on exercise of such exchanged Company Certificated Warrant immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio, at an exercise price per Purchaser Subordinate Voting Share equal to the exercise price per share under such exchanged Company Certificated Warrant immediately prior to the Effective Time divided by the Adjusted Exchange Ratio (provided that if the exercise of Replacement Certificated Warrants by a holder would otherwise result in the aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Purchaser Subordinate Voting Share, the aggregate number of Purchaser Subordinate Voting Shares otherwise issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Replacement Certificated Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the same as the terms and conditions of such exchanged Company Certificated Warrant, and such exchanged Company Certificated Warrant shall thereupon be cancelled. Any document previously evidencing such Company Certificated Warrant shall thereafter evidence and be deemed to evidence such Replacement Certificated Warrant and no certificates evidencing the Replacement Certificated Warrants shall be issued;
(12) each Company MVS Warrant outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, adjusted in accordance with its terms for a Purchaser warrant (each, a “Replacement MVS Warrant”) which will entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Multiple Voting Shares issuable on exercise of such exchanged Company MVS Warrant immediately prior to the Effective Time is multiplied by the product of, (A) the holders of PHM Shares will cease to be the holders thereof Adjusted Exchange Ratio, and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from MVS Conversion Ratio, at an exercise price per Purchaser Subordinate Voting Share equal to the securities register exercise price per share under such exchanged Company MVS Warrant immediately prior to the Effective Time divided by the product of PHM; (A) the Adjusted Exchange Ratio, and (B) the MVS Conversion Ratio (provided that none if the exercise of Replacement MVS Warrants by a holder would otherwise result in the foregoing will occur aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Purchaser Subordinate Voting Share, the aggregate number of Purchaser Subordinate Voting Shares otherwise issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Replacement MVS Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the same as the terms and conditions of such exchanged Company MVS Warrant, and any document previously evidencing such Company MVS Warrant shall thereafter evidence and be deemed to occur unless all evidence such Replacement MVS Warrant and no certificates evidencing the Replacement MVS Warrants shall be issued;
(13) the Company Warrant Indentures shall be terminated; and
(14) any other rights of any other Person, other than the Purchaser or as otherwise set out above in this Section 3.1, in respect of the foregoing occurs or is deemed to occurCompany Shares, Company Warrants and Company MVS Warrants shall be extinguished.
Appears in 1 contract
The Arrangement. Commencing at the Effective Time, except as each of the transactions or events set out below shall, unless otherwise noted hereinspecifically provided in this Section 3.1, the following will occur and will be deemed to occur in the following order sequence and immediately following the immediately preceding transaction or event, in each case without any further authorization, act or formality on the part of any Person: :
(1) each Dissent Share held by a Dissenting Shareholder shall be, and shall be deemed to be, transferred by the holder thereof to the Company for cancellation and shall be cancelled, and upon such transfer:
(a) all Dissent Securities held by such Dissenting Securityholders will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder Shareholder will cease to be the holder of such Dissent Share or to have any rights as a PHM Securityholder holder in respect of such Dissent Share, other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesShare determined and payable in accordance with Article 4; and
(iib) the Dissenting Securityholder's name will former holders of such Dissent Shares shall be removed as from the Company’s central securities register for the Company Shares in respect of such Dissent Shares;
(2) subject to Section 5.3, each Company Multiple Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the MVS Consideration, and upon such exchange:
(a) the former holder of such Dissent Securities exchanged Company Multiple Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the MVS Consideration issuable in respect of such Company Multiple Voting Share pursuant to this Section 3.1(2);
(b) the former holders of such exchanged Company Multiple Voting Shares shall be removed from the Company’s central securities register for the Company Multiple Voting Shares;
(c) the former holders of such exchanged Company Multiple Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(2); and
(d) the Purchaser will be, and will be deemed to be, the legal and beneficial owner of such transferred Company Multiple Voting Shares and will be entered in the central securities register of PHM; the Company as the sole holder thereof;
(iii3) concurrently with the exchange of Company Multiple Voting Shares pursuant to Section 3.1(2), there shall be added to the capital of the Purchaser Subordinate Voting Shares, in respect of the Purchaser Subordinate Voting Shares issued pursuant to Section 3.1(2), an amount equal to the product obtained when (i) the paid-up capital of the Company Multiple Voting Shares immediately prior to the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Multiple Voting Shares (excluding any Dissent Securities will be cancelled; Shares) outstanding immediately prior to the Effective Time, and (ivB) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; denominator of which is the number of Company Multiple Voting Shares (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunderDissent Shares) outstanding immediately prior to the Effective Time;
(4) subject to Section 5.3, each PHM Option that has not been duly exercised Company Super Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the SVS Consideration, and upon such exchange:
(a) the former holder of such exchanged Company Super Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the SVS Consideration issuable in respect of such Company Super Voting Share pursuant to this Section 3.1(4);
(b) the former holders of such exchanged Company Super Voting Shares shall be removed from the Company’s central securities register for the Company Super Voting Shares;
(c) the former holders of such exchanged Company Super Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(4); and
(d) the Purchaser will be, and will be deemed to be, the legal and beneficial owner of such transferred Company Super Voting Shares and will be surrendered and entered in the central securities register of the Company as the sole holder thereof;
(5) concurrently with the exchange of Company Super Voting Shares pursuant to Section 3.1(4), there shall be cancelled (without any action on added to the part capital of the holder Purchaser Subordinate Voting Shares, in respect of the PHM OptionPurchaser Subordinate Voting Shares issued pursuant to Section 3.1(4), and each agreement relating an amount equal to each PHM Option will be terminated and of no further force and effect, and: the product obtained when (i) in exchange, each Former PHM Optionholder will be entitled the paid-up capital of the Company Super Voting Shares immediately prior to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Super Voting Shares (excluding any Dissent Shares) outstanding immediately prior to the Effective Time, and (B) the denominator of which is the number of Company Super Voting Shares (including any Dissent Shares) outstanding immediately prior to the Effective Time;
(6) subject to Section 5.3, each Company Subordinate Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the Share Consideration, rounded down to the nearest whole Purchaser Subordinate Voting Share, and upon such exchange:
(a) the former holder of such exchanged Company Subordinate Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the Share Consideration issuable in respect of such Company Subordinate Voting Share pursuant to this Section 3.1(6);
(b) the former holders of such exchanged Company Subordinate Voting Shares shall be removed from the Company’s central securities register for the Company Subordinate Voting Shares;
(c) the former holders of such exchanged Company Subordinate Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(6); and
(d) the Purchaser will receive one be, and will be deemed to be, the legal and beneficial owner of such transferred Company Subordinate Voting Shares and will be entered in the central securities register of the Company as the sole holder thereof;
(17) New PHM concurrently with the exchange of Company Subordinate Voting Shares pursuant to Section 3.1(6), there shall be added to the capital of the Purchaser Subordinate Voting Shares, in respect of the Purchaser Subordinate Voting Shares issued pursuant to Section 3.1(6), an amount equal to the product obtained when (i) the paid-up capital of the Company Subordinate Voting Shares immediately prior to the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Subordinate Voting Shares (excluding any Dissent Shares) outstanding immediately prior to the Effective Time, and (B) the denominator of which is the number of Company Subordinate Voting Shares (including any Dissent Shares) outstanding immediately prior to the Effective Time;
(8) the terms of each Company Option outstanding immediately prior to purchase from PHM one (1) New Common Share for every PHM Share that could the Effective Time shall be purchased under the PHM adjusted so that, upon exercise of such Company Option, and each the holder shall, upon payment of the exercise price under such New PHM Company Option, be entitled to receive, in substitution for the number of Company Shares subject to such Company Option, that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Shares subject to such Company Option will immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio. For greater certainty, the Company Options shall not be exchanged or otherwise replaced by this Plan of Arrangement, and, subject to this Section 3.1(8), shall continue to be governed by the Company Equity Incentive Plan on the same terms and conditions as were applicable to such Company Options immediately prior to the Effective Time. Notwithstanding the foregoing, if necessary to satisfy the requirements of subsection 7(1.4) of the Tax Act, the exercise price of a Company Option adjusted in accordance with the foregoing shall be increased such that the In-The-Money Amount of the Company Option immediately after such adjustment does not exceed the In-The-Money Amount of the Company Option immediately before such adjustment. For any Company Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, it is intended that such adjustment will comply with Treasury Regulation Section 1.424-1(a). For any Company Option that is a nonqualified option held by a U.S. taxpayer, it is intended that such adjustment will be implemented in a manner intended comply with Section 409A of the Code;
(9) the terms of each Company RSU outstanding immediately prior to the New PHM Option Effective Time shall be adjusted so that, upon vesting of such Company RSU, the holder shall be entitled to receive, instead of the number of Company Shares underlying such Company RSU, that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Shares underlying such Company RSU immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio. For greater certainty, the Company RSUs shall not be exchanged or otherwise replaced by this Plan of Arrangement, and, subject to this Section 3.1(9), shall continue to be governed by the Company Equity Incentive Plan on the same terms and conditions as were applicable to such Company RSUs immediately prior to the Effective Time;
(10) each Company Warrant, other than any Certificated Company Warrant or Company MVS Warrant, outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, exchanged in accordance with its terms for a Purchaser warrant governed by the Purchaser Replacement Warrant Indentures (each, a “Replacement Warrant”) which will have: (1) entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Subordinate Voting Shares issuable on exercise of such exchanged Company Warrant immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio, at an exercise price per New Common Purchaser Subordinate Voting Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that per share under such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent exchanged Company Warrant immediately prior to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that Time divided by the New PHM Exercise Price Adjusted Exchange Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing exercise of Replacement Warrants by a holder would otherwise result in the issuance aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Newco Purchaser Subordinate Voting Share, then the aggregate number of Newco Purchaser Subordinate Voting Shares otherwise issued will issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Newco Shares) Replacement Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the PHM Shares will same as the terms and conditions of such exchanged Company Warrant, and such exchanged Company Warrant shall thereupon be cancelled. Any document previously evidencing such Company Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued;
(11) each Company Certificated Warrant outstanding immediately prior to the Effective Time shall be, and: and shall be deemed to be, adjusted in accordance with its terms for a Purchaser warrant (each, a “Replacement Certificated Warrant”) which will entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Subordinate Voting Shares issuable on exercise of such exchanged Company Certificated Warrant immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio, at an exercise price per Purchaser Subordinate Voting Share equal to the exercise price per share under such exchanged Company Certificated Warrant immediately prior to the Effective Time divided by the Adjusted Exchange Ratio (provided that if the exercise of Replacement Certificated Warrants by a holder would otherwise result in the aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Purchaser Subordinate Voting Share, the aggregate number of Purchaser Subordinate Voting Shares otherwise issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Replacement Certificated Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the same as the terms and conditions of such exchanged Company Certificated Warrant, and such exchanged Company Certificated Warrant shall thereupon be cancelled. Any document previously evidencing such Company Certificated Warrant shall thereafter evidence and be deemed to evidence such Replacement Certificated Warrant and no certificates evidencing the Replacement Certificated Warrants shall be issued;
(12) each Company MVS Warrant outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, adjusted in accordance with its terms for a Purchaser warrant (each, a “Replacement MVS Warrant”) which will entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Multiple Voting Shares issuable on exercise of such exchanged Company MVS Warrant immediately prior to the Effective Time is multiplied by the product of, (A) the holders of PHM Shares will cease to be the holders thereof Adjusted Exchange Ratio, and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from MVS Conversion Ratio, at an exercise price per Purchaser Subordinate Voting Share equal to the securities register exercise price per share under such exchanged Company MVS Warrant immediately prior to the Effective Time divided by the product of PHM; (A) the Adjusted Exchange Ratio, and (B) the MVS Conversion Ratio (provided that none if the exercise of Replacement MVS Warrants by a holder would otherwise result in the foregoing will occur aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Purchaser Subordinate Voting Share, the aggregate number of Purchaser Subordinate Voting Shares otherwise issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Replacement MVS Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the same as the terms and conditions of such exchanged Company MVS Warrant, and any document previously evidencing such Company MVS Warrant shall thereafter evidence and be deemed to occur unless all evidence such Replacement MVS Warrant and no certificates evidencing the Replacement MVS Warrants shall be issued;
(13) the Company Warrant Indentures shall be terminated; and
(14) any other rights of any other Person, other than the Purchaser or as otherwise set out above in this Section 3.1, in respect of the foregoing occurs or is deemed to occurCompany Shares, Company Warrants and Company MVS Warrants shall be extinguished.
Appears in 1 contract
Samples: Arrangement Agreement (Harvest Health & Recreation Inc.)
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality on of or by the part of Company, the Purchaser or any Person: other person except as otherwise expressly provided herein:
(a) all Dissent Securities each Exeter Share issued and outstanding held by a Dissenting Securityholders will Exeter Shareholder shall be and shall deemed to have been be transferred by the holder thereof, free and clear of all Liens, to PHMthe Company for cancellation and the Company (with Company funds not directly or indirectly provided by the Purchaser or any affiliate of the Purchaser) shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4 hereof, and: (i) each and such Dissenting Securityholder will Shareholder shall cease to have any rights as a PHM Securityholder Exeter Shareholder other than the right to be paid by PHM, the amount for such Dissenting Shareholder’s Exeter Shares determined in accordance with Article 4 and the Dissent Rights, the fair value name of such Dissent Securities; (ii) the Dissenting Securityholder's name will holder shall be removed as the holder of such Dissent Securities from the central securities register of PHM; the Company as a holder of Exeter Shares;
(iiib) each Exeter Share issued and outstanding held by a Former Exeter Shareholder (other than a Dissenting Exeter Shareholder, the Dissent Securities will Purchaser or any subsidiary of the Purchaser) shall be cancelled; and (iv) the Dissenting Securityholder will shall be deemed to have executed be transferred by the holder thereof, free and delivered clear of all consentsLiens, releasesto the Purchaser and the Purchaser shall issue to such Former Exeter Shareholder, assignments the Share Consideration for each one Exeter Share, subject to Section 3.3, as the sole consideration therefore, and waivers, statutory or otherwise, required the Former Exeter Shareholder shall cease to transfer be the holder of the Exeter Shares and assign the Purchaser will be the holder of such Dissent Securities; Exeter Shares and the central securities register of the Company will be revised accordingly;
(bc) notwithstanding in accordance with the terms of the PHM Stock Option Plan, including any agreement made thereunder, each PHM holder of a Exeter Option that has not been duly exercised outstanding immediately prior to the Effective Time will be deemed shall receive (and such holder shall accept), upon the exercise of such holder’s Exeter Options, in lieu of each Exeter Share to which such holder was theretofore entitled, upon such exercise and for the same aggregate consideration payable therefor, 0.12 of a Purchaser Share; and (B) such Exeter Option shall continue to be surrendered governed by and shall be cancelled (without any action on subject to the part terms of the holder Stock Option Plan and any applicable agreement thereunder. If the adjustment to the Exeter Options contemplated by this paragraph results in a disposition of Exeter Options for options to acquire Purchaser Shares or “new” Exeter Options, it is intended that the provisions of subsection 7(1.4) of the PHM Option)Tax Act apply to any such disposition. Therefore, and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name event that the In-The-Money Amount in respect of an Eligible PHM Optionholder that is outstanding a Exeter Option immediately after the Effective Time exceeds the In-The-Money Amount in respect of the Exeter Option immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM exercise price of a Exeter Option will be governed by increased such that the terms In-The-Money Amount of the New PHM Exeter Option Plan and will have: (1) an exercise price per New Common Share equal to immediately after the exercise price Effective Time does not exceed the In-The-Money Amount of the applicable PHM Exeter Option multiplied by immediately before the New PHM Exercise Price Ratio, rounded to Effective Time; and
(d) the nearest half cent, exchanges and cancellations provided that for in the event that such exercise price so calculated is less than $0.05, the exercise price this Section 3.1 will be rounded up deemed to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to occur on the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such notwithstanding that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 certain of the Tax Act, which organization will occur in procedures related thereto are not completed until after the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurEffective Date.
Appears in 1 contract
The Arrangement. Commencing at (a) On the Effective Time, except Date (or on such other date as otherwise noted herein, may be determined by the following will board of directors of Merus and Envoy) the events and transactions set out in Section 3.1(b) below shall occur and will be deemed to occur on the Effective Date (or on such other date as may be determined by the board of directors of Merus and Envoy);
(b) The following events and transactions shall occur and be deemed to occur in the following order in which they are listed and without any further act or formality on and with each transaction or event being deemed to occur immediately after the part occurrence of any Person: the transaction or event immediately preceding it:
(ai) all Dissent Securities Immediately prior to the Effective Time, the Merus Shares and Envoy Shares held by Dissenting Securityholders will Shareholders shall be deemed to have been transferred surrendered for cancellation, and such Dissenting Shareholders shall cease to PHMbe the holders of such Merus Shares and Envoy Shares, and: (i) each Dissenting Securityholder will cease as applicable, and to have any rights as a PHM Securityholder holders of such Merus Shares and Envoy Shares, as applicable, other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of for such Dissent Securities; (ii) the Merus Shares and Envoy Shares, as applicable, and such Dissenting Securityholder's name will Shareholders’ names shall be removed as the holder holders of such Dissent Securities Merus Shares and Envoy Shares, as applicable, from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consentsMerus or Envoy, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; as applicable;
(ii) Merus and Envoy shall amalgamate to form Amalco with the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of same effect as if they had amalgamated under Section 86 270 of the Tax ActBCBCA, which organization will occur in accordance with the following order: following:
A. Merus Shareholders (iother than the Dissenting Shareholders) exchange each four Merus Shares for one Amalco Share, or such other ratio as necessary to account for the identifying name consolidation of the PHM Envoy Shares (the “Merus Exchange Ratio”) provided that no fractional Amalco Shares will be changed from “Common Shares” distributed to “Class A Common Shares” Merus Shareholders and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Amalco Shares otherwise issued to which each Merus Shareholder is entitled will be rounded down to the nearest next whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names no payment will be removed from made in respect of such a fractional share;
B. Envoy Shareholders (other than the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur.Dissenting Shareholders) exchange each Envoy Share for one Amalco Share;
Appears in 1 contract
Samples: Arrangement Agreement (Merus Labs International Inc.)
The Arrangement. Commencing at the Effective TimeTime on the Effective Date, except as otherwise noted hereinsubject to the terms and conditions of the Arrangement Agreement, the following will shall occur as part of the Arrangement and will shall be deemed to occur in the following order (except that the steps in Sections 2.2(b), 2.2(c), 2.2(d), 2.2(e) and 2.2(f) shall be deemed to occur simultaneously) without any further act or formality:
(a) each Meta Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on the part of any Person: (a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder)part, free and clear of all Encumbrances, to Meta and Meta shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 3 hereof, and the name of such holder shall be removed from the central securities register of Meta as a holder of Meta Shares and Meta shall be recorded as the registered holder of the Meta Shares so transferred and shall be deemed to be the legal owner of such Meta Shares, which Meta Shares shall thereupon be cancelled;
(b) each Meta Option outstanding immediately prior to the Effective Time shall, without further action or formality by or on behalf of the holders thereof, be exchanged for one an RTO Acquiror Replacement Option to purchase from the RTO Acquiror the number of RTO Acquiror Shares equal to the product of (1A) New Common Share the number of Meta Shares issuable pursuant to the exercise of the Meta Option immediately before the Effective Time, and one tenth (1/10B) of one Newco Share (the Exchange Ratio, provided that if the foregoing would result in the issuance of a fraction of a Newco Sharean RTO Acquiror Share being issuable upon any particular exercise of RTO Acquiror Replacement Options, then the number of Newco RTO Acquiror Shares otherwise issued will issuable upon exercise of such RTO Acquiror Replacement Options shall be rounded down to the nearest whole number of Newco RTO Acquiror Shares) and . The exercise price per RTO Acquiror Share subject to any such RTO Acquiror Replacement Option shall be an amount equal to the PHM Shares will thereupon be cancelled, and: quotient of (A) the holders of PHM Shares will cease exercise price per Meta Share under the exchanged Meta Option immediately prior to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; Effective Time, divided by (B) the holders’ names Exchange Ratio. Except as set out above, all terms and conditions of an RTO Acquiror Replacement Option, including the term to expiry, conditions to and manner of exercising, will be removed from the securities register of PHM; same as the Meta Option for which it was exchanged and provided that none of the foregoing will occur or any document evidencing a Meta Option shall thereafter evidence and be deemed to occur unless all evidence such RTO Acquiror Replacement Option;
(c) each Meta DSU shall, without any further action on the part of any holder thereof, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the foregoing occurs deferred share unit plan of Meta, the terms of the Meta DSUs shall be amended so as to substitute for the Meta Shares issuable pursuant to such Meta DSUs, such number of RTO Acquiror Shares equal to (A) the number of Meta Shares issuable pursuant to the Meta DSUs immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number;
(d) each Meta Warrant shall, without any further action on the part of any holder thereof, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the applicable warrant certificate, the terms of the Meta Warrants shall be amended so as to (i) substitute for the Meta Shares issuable pursuant to the exercise of such Meta Warrants such number of RTO Acquiror Shares equal to (A) the number of Meta Shares issuable pursuant to the exercise of such Meta Warrants immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to the nearest whole number; and (ii) adjust the exercise price per RTO Acquiror Share issuable pursuant to the exercise of any such Meta Warrant following the Effective Time to be an amount equal to the quotient of (A) the exercise price per Meta Share under the Meta Warrant immediately prior to the Effective Time divided by (B) the Exchange Ratio;
(e) each issued and outstanding Meta Share (other than Exchangeable Elected Shares and other than Meta Shares held by RTO Acquiror or is an affiliate thereof or Dissenting Shareholders) held by a Meta Shareholder shall be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances, to Canco in exchange for RTO Acquiror Share Consideration in accordance with the election or deemed election of such Meta Shareholder pursuant to occurSection 2.3;
(f) each Exchangeable Elected Share shall be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Encumbrances, to Canco in exchange for Exchangeable Share Consideration in accordance with the election of such Meta Shareholder pursuant to Section 2.3; and
(g) RTO Acquiror, Canco and Callco shall execute the Support Agreement and RTO Acquiror, Canco and the Transfer Agent shall execute the Voting and Exchange Trust Agreement and RTO Acquiror shall issue to and deposit with the Transfer Agent the Special Voting Share in consideration of the payment to RTO Acquiror by Meta on behalf of the Meta Shareholders of one dollar ($1.00), to be thereafter held of record by the Transfer Agent as trustee for and on behalf of, and for the use and benefit of, the holders of the Exchangeable Shares in accordance with the Voting and Exchange Trust Agreement. All rights of holders of Exchangeable Shares under the Voting and Exchange Trust Agreement shall be received by them as part of the property receivable by them under Section 2.2(c) in exchange for the Exchangeable Elected Shares for which they were exchanged.
Appears in 1 contract
Samples: Arrangement Agreement (Torchlight Energy Resources Inc)
The Arrangement. Commencing The Arrangement shall provide in substance that, and the parties covenant to take such steps as are necessary to ensure that, commencing at the Effective Time, except as otherwise noted herein, the following will shall occur and will be deemed to occur in the following order and without any further act or formality on the part of any Person: formality:
(a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, and: each outstanding VERSUS Share and the Associated Rights (other than (i) VERSUS Shares and Associated Rights held by a holder who has exercised Dissent Rights and is ultimately entitled to be paid the fair value of his VERSUS Shares, (ii) VERSUS Shares and Associated Rights held by ECC or any subsidiary or affiliate thereof, which shall not be exchanged under the Arrangement and shall remain outstanding, and (iii) VERSUS Shares and Associated Rights held by a holder that duly elects to receive EGI Common Shares) will be transferred by the holder thereof to ECC in exchange for that number of issued, fully paid and non-assessable Exchangeable Shares which is equal to the Exchange Ratio and ECC will become the registered and beneficial owner of the VERSUS Shares and Associated Rights exchanged as aforesaid;
(b) each Dissenting Securityholder outstanding VERSUS Share and Associated Rights held by a holder of VERSUS Shares who so elects pursuant to the Letter of Transmittal and Election Form (other than (i) VERSUS Shares and Associated Rights held by a holder who has exercised Dissent Rights and (ii) VERSUS Shares and Associated Rights held by ECC or any subsidiary or affiliate thereof, which shall not be exchanged under the Arrangement and shall remain outstanding) will be transferred by the holder thereof to EGI Newco in exchange for that number of issued, fully paid and non-assessable EGI Common Shares which is equal to the Exchange Ratio and EGI Newco will become the registered and beneficial owner of the VERSUS Shares and Associated Rights exchanged as aforesaid;
(c) in lieu of fractional Exchangeable Shares or fractional EGI Common Shares, each holder of VERSUS Shares who would otherwise be entitled to receive a fraction of an Exchangeable Share or of an EGI Common Share shall be paid an amount in cash equal to such holder's pro rata share of the net proceeds received from aggregating all such fractional interests and selling them in the open market;
(d) each VERSUS Option outstanding at the Effective Time shall be assumed by EGI (an "Assumed Option") on the terms set forth in Section 6.13; and
(e) each Compensation Option shall be assumed by ECC on the terms set forth herein and VERSUS shall cease to have any rights as a PHM Securityholder other than the right liability in respect thereof. Each such Compensation Option so assumed by ECC shall continue to have, and be paid by PHM, in accordance with the Dissent Rightssubject to, the fair value same terms and conditions as are set forth in the Compensation Option immediately prior to the Effective Time, except that (i) such option will be exercisable for that number of whole Exchangeable Shares equal to the product of the number of VERSUS Shares that were issuable upon exercise of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Compensation Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised immediately prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Exchange Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Exchangeable Shares) , and the PHM Shares will thereupon be cancelled, and: (Aii) the holders per share exercise price for the Exchangeable Shares issuable upon exercise of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names such assumed Compensation Option will be removed from equal to the securities register quotient determined by dividing the exercise price per share of PHM; and provided that none VERSUS Shares at which such option was exercisable immediately prior to the Effective Time by the Exchange Ratio, rounded up to the nearest whole cent. Within thirty (30) Business Days after the Effective Time, ECC will issue to each person who, immediately prior to the Effective Time was a holder of an outstanding Compensation Option a document evidencing the foregoing will occur or be deemed to occur unless all assumption of the foregoing occurs or is deemed to occursuch option by ECC.
Appears in 1 contract
Samples: Merger Agreement (E Trade Group Inc)
The Arrangement. Commencing The Arrangement shall provide that, and the parties covenant to take such steps as are necessary to ensure that, commencing at the Arrangement Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur in the following order order:
(a) The authorized share capital of CN shall be reorganized by the creation of the following three classes of shares in the capital of CN:
(i) a class of shares, designated as CN Voting Shares, the authorized number of which shall be unlimited;
(ii) a class of shares, designated as CN Exchangeable Shares, the authorized number of which shall be unlimited; and
(iii) a class of shares, designated as CN Limited Voting Equity Shares, the authorized number of which shall be unlimited.
(b) Each outstanding CN Common Share shall be changed into a number of CN Voting Shares equal to the Exchange Ratio and a number of CN Exchangeable Shares equal to the Exchange Ratio.
(c) Simultaneously with the change in share capital under Section 2.7(b), each CN Exchangeable Share to which the holder of a CN Common Share is entitled and with respect to which such holder has elected, in a duly completed and timely submitted letter of transmittal and election form, to transfer to Newco for a Newco Common Share (the CN Exchangeable Share with respect to which such election was made, a "Newco Elected Exchangeable Share") shall be transferred by the holder thereof, without any further act or formality on such holder's part, to Newco in exchange for one Newco Common Share issued by Newco. Notwithstanding the part foregoing, each holder of any Person: CN Common Shares who is not a resident of Canada for purposes of the Income Tax Act (aCanada) all Dissent Securities held by Dissenting Securityholders will shall be deemed to have been transferred elected to PHMexchange all of the CN Exchangeable Shares issuable to such holder pursuant to the Arrangement for Newco Common Shares and the CN Exchangeable Shares to which such holder is entitled shall be deemed for all purposes to be Newco Elected Exchangeable Shares, and: (i) each Dissenting Securityholder will cease except where and to the extent that such holder specifically elects in a duly completed and timely submitted letter of transmittal and election form not to have any rights as such exchange occur. CN and BNSF may jointly determine that such transfer and exchange shall be made to and with NAR Subco rather than Newco.
(d) Simultaneously with the change in share capital under Section 2.7(b) and the transfer to Newco and exchange under Section 2.7(c) of the Newco Elected Exchangeable Shares, each Newco Elected Exchangeable Share shall be converted into one CN Limited Voting Equity Share.
(e) Simultaneously with the change in share capital under Section 2.7(b), the transfer to Newco and exchange under Section 2.7(c) of the Newco Elected Exchangeable Shares and the conversion under Section 2.7(d) of the Newco Elected Exchangeable Shares, Newco shall and shall be deemed to have subscribed for and agreed to purchase and CN shall issue and sell to Newco one (1) CN Limited Voting Equity Share upon payment by Newco to CN of a PHM Securityholder sum equal to the closing trading price, per share, of the CN Common Shares on The Toronto Stock Exchange on the trading day which is two days prior to the Arrangement Effective Date divided by the Exchange Ratio. CN and BNSF may jointly determine that such issuance shall be made to NAR Subco rather than Newco.
(f) All holders of Newco Common Shares, other than those issued pursuant to the right exchange provided for in Section 2.7(c), shall be deemed to have subscribed for and agreed to purchase at a purchase price of $0.05 per share, or such other amount as to which the parties may agree, and CN shall issue to each such holder of Newco Common Shares, one (1) CN Voting Share for each Newco Common Share so held upon payment by Newco to CN of the aggregate subscription price therefor.
(g) Newco shall issue to and deposit with the Trustee the Special Voting Share, in consideration of the payment to Newco of $0.05 by CN, to be paid thereafter held of record by PHMthe Trustee as trustee for and on behalf of, and for the use and benefit of, the holders of the CN Exchangeable Shares in accordance with the Dissent Rights, Voting and Exchange Trust Agreement.
(h) Each CN Option shall be exchanged for an option (a "CN Replacement Option") to purchase that number of Newco Stapled Units equal to the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms product of the PHM Exchange Ratio multiplied by the number of CN Common Shares subject to such CN Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised immediately prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Arrangement Effective Time, the holder will receive one (1) New PHM . Each CN Replacement Option to purchase from PHM one (1) New Common Share shall provide for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share Newco Stapled Unit equal to the exercise price per CN Common Share of such CN Option immediately prior to the applicable PHM Option multiplied Arrangement Effective Time divided by the New PHM Exercise Price Exchange Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if . If the foregoing would result calculation results in the issuance of a CN Replacement Option being exercisable for a fraction of a Newco ShareStapled Unit, then the number of Newco Shares otherwise issued will Stapled Units subject to such CN Replacement Option shall be rounded down up to the nearest next whole number of Newco Shares) Stapled Units. The term to expiry, conditions to and the PHM Shares will thereupon manner of exercising, vesting schedule, and all other terms and conditions of such CN Replacement Option shall otherwise be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed unchanged from the securities register of PHM; and provided that none those of the foregoing will occur CN Option for which it was exchanged, and any document or agreement previously evidencing such CN Option shall thereafter evidence and be deemed to occur unless all evidence such CN Replacement Option.
(i) The authorized share capital of CN shall be amended by the elimination of the foregoing occurs or is deemed to occurCN Common Shares as a class of authorized shares.
Appears in 1 contract
Samples: Combination Agreement (Burlington Northern Santa Fe Corp)
The Arrangement. Commencing at The Arrangement
3.1 At the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order sequence without any further authorization, act or formality on the part of by Genco, Silvermex or any Person: other person:
(a) all Dissent Securities each of the issued and outstanding Silvermex Common Shares, other than those held by Dissenting Securityholders Shareholders, will be deemed to be acquired by Genco, free and clear of any Liens, in exchange for 0.90909 Pre-Split Genco Shares, if the Genco Share Split has not occurred, or one Genco Common Share, if the Genco Share Split has occurred, (the “Exchange Ratio”), provided that the aggregate number of Genco Common Shares payable to any Silvermex Shareholder, if calculated to include a fraction of a Genco Common Share, will be rounded to the nearest whole number of Genco Common Shares;
(b) each Silvermex Shareholder will be deemed to have transferred such Silvermex Common Shares held by him to Genco and Genco will be deemed to have issued Genco Common Shares in exchange therefor;
(c) each Silvermex Shareholder will cease to be a holder of Silvermex Common Shares and the name of each Silvermex Shareholder will be removed from the central securities register of Silvermex as of the Effective Date;
(d) the certificate representing each Silvermex Common Share will be deemed to have been transferred to PHM, and: cancelled as of the Effective Date;
(ie) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder Silvermex Shareholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer implement and assign such Dissent Securities; carry out the Arrangement;
(bf) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time Genco will be and will be deemed to be surrendered the transferee of all Silvermex Common Shares, free and shall clear of any Liens, and will be cancelled (without any action on entered in the part central securities register of Silvermex as the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and such Silvermex Common Shares as of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one Date; and
(1g) New PHM each outstanding Silvermex Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option which will be governed by the terms of the New PHM Genco Share Option Plan Plan) will be deemed exercisable for Genco Common Shares, such that: (i) on exercise of each Silvermex Option, the holder will be entitled to acquire, and will have: (1) an exercise price per New Common Share equal to the exercise price accept in lieu of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded number of Silvermex Common Shares to the nearest half cent, provided that in the event that which such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to holder was entitled immediately before the Effective Date, five trading days have elapsed in respect the number of each Genco Common Shares equal to the product of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (iiA) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect number of Silvermex Common Shares subject to the PHM Silvermex Option Plan, any PHM Option or any agreements made in connection therewith; and immediately before the Effective Date multiplied by (iiiB) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax ActExchange Ratio, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Genco Common Share, then the number of Newco Genco Common Shares otherwise issued on exercise of the Silvermex Option will be rounded down to the nearest whole number of Newco Genco Common Shares; and (ii) and each such Silvermex Option will have an exercise price per Genco Common Share, denominated in the PHM Shares will thereupon be cancelledsame currency as applicable to the Silvermex Option for which it is exchanged, and: of an amount (Arounded up to the nearest one-hundredth of a dollar) equal to the quotient of (C) the holders of PHM Shares will cease exercise price per Silvermex Common Share subject to be such Silvermex Option immediately before the holders thereof and cease to have any rights or privileges as holders of PHM Shares; Effective Date divided by (BD) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurExchange Ratio.
Appears in 1 contract
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality of or by Aethon, AbraPlata or any other person:
(a) each Aethon Share held by a Dissenting Aethon Shareholder who has validly exercised Dissent Rights and which Dissent Rights remain valid immediately prior to the Effective Time, shall be deemed to be acquired by AbraPlata from the Dissenting Aethon Shareholder, without any further act or formality on the part its part, free and clear of any Person: (a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHMEncumbrances in consideration for a debt claim against AbraPlata for an amount determined and payable in accordance with Article 4 hereof, and: (i) each such Dissenting Securityholder will Aethon Shareholder shall cease to be the holder of such Aethon Shares and to have any rights as a PHM Securityholder holder of such Aethon Shares, other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value for such Aethon Shares (with Aethon funds not directly or indirectly provided by AbraPlata or any affiliate of AbraPlata), as set out in Article 4 hereof; such Dissent Securities; (ii) the Dissenting SecurityholderAethon Shareholder's name will shall be removed as the holder of such Dissent Securities Xxxxxx Xxxxxx from the central securities register of PHMAethon Shares maintained by or on behalf of Aethon; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will Aethon Shareholder thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign each such Dissent SecuritiesDissenting Share; and AbraPlata shall be, and shall be deemed to be, the holder of all of the outstanding Dissenting Shares and the the register of Aethon Shares maintained by or on behalf of Aethon shall be, and shall be deemed to be, revised accordingly;
(b) notwithstanding each Aethon Share outstanding (other than Aethon Shares held by Dissenting Aethon Shareholders, AbraPlata or any subsidiary of AbraPlata) shall be transferred to AbraPlata in exchange for the terms Consideration Shares, and: the holders of such Aethon Shares shall cease to be the PHM Option Planholders thereof and to have any rights as holders of such Aethon Shares, including any agreement made thereunder, each PHM Option that has not been duly exercised prior other than the right to receive the Effective Time will Consideration Shares in respect of such Aethon Shares in accordance with the Plan of Arrangement; such holders' names shall be removed as the holders of such Aethon Shares from the register of Xxxxxx Xxxxxx maintained by or on behalf of Aethon; and AbraPlata shall be deemed to be surrendered and shall be cancelled (without any action on the part transferee of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Aethon Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result shall be entered in the issuance register of a fraction Aethon Shares maintained by or on behalf of a Newco Share, then Aethon as the number holder of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Sharessuch Xxxxxx Xxxxxx; and
(c) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none Effective Date until expiry of the foregoing Aethon Options (in accordance with their respective terms), AbraPlata will occur or be deemed to occur unless assume all of the foregoing occurs or is deemed covenants and obligations of Aethon under the Aethon Options and in accordance with the terms and conditions of the Aethon Stock Option Plan, do all things necessary to occurprovide for the application of the provisions set forth in the Aethon Stock Option Plan with respect to the rights and interests of the holders thereof, such that upon exercise an Aethon Option will entitle the holder thereof to receive, for each Aethon Option, 3.75 AbraPlata Shares, subject to adjustment in accordance with their terms, and the Aethon Options will otherwise be valid and binding obligations of AbraPlata entitling the holders thereof, as against AbraPlata, to all the rights of such holders as set out in the Aethon Stock Option Plan.
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following will shall occur and will be deemed to occur in the following order without any further act or formality on formality:
(1) each Option outstanding immediately prior to the part of Effective Time, notwithstanding any Person: (a) all Dissent Securities held by Dissenting Securityholders will contingent vesting provisions to which it might otherwise be subject, shall be deemed to have been transferred be vested and then shall be immediately cancelled in exchange for a cash payment from or on behalf of Maple equal to PHMthe excess, and: if any, of (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to product of the number of Shares underlying such Option and the Cash Proceeds per Share over (ii) the applicable aggregate exercise price of such Option (the “Option Consideration”), which amount shall be paid by PHM, to the holder of such Option from the funds deposited with the Depository in accordance with the Plan of Arrangement;
(2) each Share in respect of which Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to Rights have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly validly exercised prior to before the Effective Time will shall be transferred and deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed transferred by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratioregistered holder thereof, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder)its part, free and clear of all EncumbrancesLiens, to Acquisition Sub in consideration for one (1) New Common Share a debt claim against Acquisition Sub in an amount determined and one tenth (1/10) payable in accordance with the terms of one Newco Share (provided that if the foregoing would result in the issuance this Plan of a fraction of a Newco ShareArrangement, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders name of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names such holder will be removed from the securities register of PHMholders of Shares (in respect of the Shares for which Dissent Rights have been validly exercised before the Effective Time), and Acquisition Sub shall be recorded as the registered holder of Shares so transferred and shall be deemed to be the legal and beneficial owner of such Shares free and clear of any Liens;
(3) each Share (other than Dissent Shares and other than Shares held by a Holdco or by Acquisition Sub or its affiliates) shall be transferred and deemed to be transferred by the registered holder thereof, without any further act or formality on its part, free and clear of all Liens, to Acquisition Sub in consideration of the payment of the Cash Proceeds per Share to such holder, and the name of such holder will be removed from the register of holders of Shares, and Acquisition Sub shall be recorded as the registered holder of Shares so transferred and shall be deemed to be the legal and beneficial owner of such Shares free and clear of any Liens;
(4) following the resignation by, or removal of, a holder of DSUs as a director of the Company, each DSU granted and outstanding immediately prior to the Effective Time held by such holder shall, notwithstanding any contingent vesting provisions to which the DSU might otherwise be subject, be immediately cancelled in exchange for a cash payment from or on behalf of Maple equal to the Cash Proceeds per Share (the “DSU Consideration"), which amount shall be paid to the holder of such DSU from the funds deposited with the Depositary in accordance with the Plan of Arrangement;
(5) all of the issued and outstanding Holdco Shares in respect of each Holdco shall be transferred and deemed to be transferred by the registered holder thereof, without any further act or formality on its part, free and clear of all Liens, to Acquisition Sub in consideration of the payment of the aggregate amount equal to the product of the Cash Proceeds per Share and the aggregate number of Maple Shares held by such Holdco to such holder and the name of such holder will be removed from the register of Holdco Shareholders and Acquisition Sub shall be recorded as the registered holder of Holdco Shares so transferred and shall be deemed to be the legal and beneficial owner of such Holdco Shares free and clear of any Liens;
(6) the stated capital in respect of the Shares and the Holdco Shares shall be reduced to $1.00;
(7) the Company will file an election with the Canada Revenue Agency, to be effective prior to the Amalgamation described in paragraph 2.2(8) below, to cease to be a public corporation for the purposes of the Tax Act;
(8) the Amalgamating Corporations shall be amalgamated to form Amalco and continue as one corporation under the OBCA on the terms prescribed in this Plan of Arrangement and, as a result, the Amalgamating Corporations will merge with the same effect as if they were amalgamated under section 177(1) of the OBCA; and, following the amalgamation of the Amalgamating Corporations described in this paragraph 2.2(8) and provided from and after such time:
(a) the property and liabilities of the Amalgamating Corporations will become the property and liabilities of Amalco;
(b) the Amalgamating Corporations will continue as one company;
(c) Amalco will own and hold all property of the Amalgamating Corporations, and, shall continue to be liable for the obligations of the Amalgamating Corporations and will be liable for the obligations of the Amalgamating Corporations, including civil, criminal and quasi-criminal liabilities and all contracts, disabilities, options, warrants and debts of each of the Amalgamating Corporations;
(d) all rights, contracts, permits and interests of the Amalgamating Corporations will continue as rights, contracts, permits and interests of Amalco as if the Amalgamating Corporations continued and, for greater certainly, the merger will not constitute a transfer or assignment of the rights or obligations of any of the Amalgamating Corporations under any such rights, contracts, permits and interests;
(e) any existing cause of action, claim or liability to prosecution is unaffected;
(f) a civil, criminal or administrative action or proceeding pending by or against any of the Amalgamating Corporations may continue to be prosecuted by or against Amalco;
(g) a conviction against, or ruling, order or judgment in favour of or against, any of the Amalgamating Corporations may be enforced by or against Amalco;
(h) the name of Amalco shall be Maple Timber Canada, Inc.;
(i) all outstanding common shares of Acquisition Sub shall be cancelled and Timber shall receive on the Amalgamation one common share of Amalco for the one common share of Acquisition Sub previously held by Timber;
(j) the registered and records office of Amalco shall be located at l;
(k) the head office of Amalco will be located at 000 XxXxxxxx Xxxx Waterloo, Ontario N2V 2E9;
(l) Amalco shall be authorized to issue an unlimited number of common shares;
(m) the articles of amalgamation of Amalco shall be substantially in the form attached as appendix l to this Plan of Arrangement;
(n) the by-laws of Amalco shall be substantially in the form of the by-laws of Acquisition Sub;
(o) the first annual general meeting of Amalco will be held within 18 months after the Effective Date; and
(p) the first directors of Amalco following the Amalgamation shall be l; provided, however, that none of the foregoing will shall occur or be deemed to occur unless all of the foregoing occurs or is deemed to occuroccurs.
Appears in 1 contract
The Arrangement. 3.1 The Arrangement Commencing at the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order sequence without any further authorization, act or formality on the part of by Earthstone, Earthstone Acquisition, Lynden, Lynden Securityholders or any Person: other person:
(a) all Dissent Securities each issued and outstanding Lynden Share held by a Dissenting Securityholders Shareholder will be, and will be deemed to have been be, transferred by the holder thereof, free and clear from any claims, liens or encumbrances to PHM, and: (i) Earthstone and thereupon each Dissenting Securityholder will Shareholder shall cease to have any rights as a PHM Securityholder Lynden Shareholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of for their Lynden Shares as set out in Article 4 and such Dissent Securities; (ii) the Dissenting Securityholder's Shareholder’s name will be removed as the holder of such Dissent Securities from the central securities register of PHMLynden in respect of such Lynden Share as at the Effective Time; and
(b) each issued and outstanding Lynden Share, other than any Lynden Shares held by a Dissenting Shareholder and other than the Lynden Shares already held by Earthstone, will be, and will be deemed to be, transferred by the holder thereof to Earthstone and acquired by Earthstone, free and clear from any claims, liens or encumbrances in exchange for 0.02842 shares of Earthstone Common Stock (the “Share Exchange Ratio”) and in respect of each such Lynden Share:
(i) the holder of such Lynden Share shall cease to be the holder thereof at the Effective Time concurrently with the exchange referred to in this Section 3.1(b) and such holder’s name shall be removed from the central securities register of Lynden in respect of such Lynden Share as of the Effective Time;
(ii) Earthstone shall be deemed to be the transferee of such Lynden Share (free from any claim, lien or encumbrance) at the Effective Time and shall be entered in the central securities register of Lynden as the holder thereof; and
(iii) Earthstone will issue and deliver to the Depositary on behalf of the holder of such Lynden Share 0.02842 shares of Earthstone Common Stock, which Earthstone Common Stock will be issued as fully paid and non-assessable shares of Earthstone and certificates representing such Earthstone Common Stock will be delivered to the Depositary, to be dealt with in accordance with Article 5 below, as the sole consideration therefor and the central securities register of Earthstone will be revised accordingly.
(c) the Lynden Options will be dealt with in accordance with Section 3.3 below;
(d) Earthstone Acquisition shall amalgamate with and into Lynden to form one corporation with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, except that the separate legal existence of Lynden will not cease and Lynden will survive the amalgamation (Lynden, as such surviving entity, “Amalco”), in accordance with the following:
(i) at the time of the amalgamation, the separate legal existence of Earthstone Acquisition shall cease without Earthstone Acquisition being liquidated or wound up and Earthstone Acquisition and Lynden shall continue as one company;
(ii) the notice of articles of amalgamation and articles of Amalco shall be substantially in the form of the notice of articles and articles of Earthstone Acquisition, taking into account the transactions set forth herein;
(iii) the Dissent Securities will Lynden Shares held by Earthstone Acquisition shall be cancelled; cancelled without reimbursement of the capital represented thereby and the capital of Amalco shall be the same as the capital of Earthstone Acquisition immediately prior to the Amalgamation;
(iv) the Dissenting Securityholder property, rights and interests of Earthstone Acquisition and Lynden will be deemed the property, rights and interests of Amalco;
(v) Amalco shall be liable for the obligations of Earthstone Acquisition and Lynden;
(vi) any existing cause of action, claim or liability to have executed and delivered all consentsprosecution of Earthstone Acquisition or Lynden shall be unaffected;
(vii) any legal proceeding being prosecuted or pending by or against either Earthstone Acquisition or Lynden may be prosecuted, releasesor by its prosecution may be continued, assignments and waiversas the case may be, statutory by or otherwiseagainst Amalco;
(viii) a conviction against, required to transfer and assign such Dissent Securities; or ruling, order or judgment in favour of or against either Earthstone Acquisition or Lynden may be enforced by or against Amalco;
(bix) notwithstanding Amalco’s name shall be Lynden Energy Corp.;
(x) the terms board of directors of Amalco shall consist of the PHM Option Planfollowing persons: Name: Address: Xxxxx X. Xxxxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxx, including any agreement made thereunderXxxxx 000 Xxxxxxxxx, each PHM Option that has not been duly exercised prior to Xxxxx 00000
(xi) the Effective Time will be deemed to be surrendered officers of Amalco shall consist of the following persons: Name: Title: Xxxxx X. Xxxxxxxxx President and Chief Executive Officer Xxxxxx Xxxxxxxx Chief Financial Officer and Secretary
(xii) the first auditors of Amalco shall be cancelled (without any action on Deloitte LLP, who shall hold office until the part first annual meeting of Amalco following the amalgamation or until their successors are elected or appointed, and for the purposes of Section 270 of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective TimeBusiness Corporations Act, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under provisions of this section shall constitute the PHM Option, amalgamation agreement between Earthstone Acquisition and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurLynden.
Appears in 1 contract
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following events set out below will occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality of or by Lake Shore, Tahoe or any other person:
(a) each Lake Shore Share held by a Dissenting Lake Shore Shareholder will be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Lake Shore and Lake Shore will thereupon be obliged to pay the part amount therefor determined and payable in accordance with Article 4 hereof, and the name of such holder will be removed from the central securities register of Lake Shore as a holder of Lake Shore Shares and the Lake Shore Shares so transferred will be cancelled;
(b) each issued Lake Shore Share held by a Former Lake Shore Shareholder (other than a Dissenting Lake Shore Shareholder or Tahoe or any subsidiary of Tahoe) will be transferred to Tahoe (free and clear of any Person: Liens) and in consideration therefor Tahoe will issue Tahoe Shares on the basis of 0.1467 of a fully paid and non-assessable Tahoe Share for each Lake Shore Share, subject to Section 3.3 and Article 5 hereof;
(ac) all Dissent Securities held by Dissenting Securityholders will be deemed at the same time as the steps in Sections 3.1(a) and 3.1(b), with respect to have been transferred to PHM, and: each Lake Shore Share,
(i) each Dissenting Securityholder the holder thereof will cease to be the holder thereof or to have any rights as a PHM Securityholder other than the right to be paid by PHM, holder in accordance with the Dissent Rights, the fair value respect of such Dissent Securities; (ii) Lake Shore Share and the Dissenting Securityholder's name of the holder thereof will be removed as the holder of such Dissent Securities from the central securities register of PHMLake Shore with respect to such Lake Shore Share;
(ii) legal and beneficial title to such Lake Shore Share (other than a Lake Shore Share transferred to Lake Shore by a Dissenting Lake Shore Shareholder) will vest in Tahoe and Tahoe will be and be deemed to be the transferee and legal and beneficial owner of such Lake Shore Share (free and clear of any Liens) and will be entered in the central securities register of Lake Shore as the sole holder thereof; and
(iii) legal and beneficial title to Lake Shore Shares held by a Dissenting Lake Shore Shareholder will be transferred to Lake Shore and the Dissent Securities Lake Shore Shares so transferred will be cancelled; and ;
(ivd) each Lake Shore Option, to the Dissenting Securityholder extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a Replacement Option to purchase a number of Tahoe Shares equal to the product of 0.1467 multiplied by the number of Lake Shore Shares issuable on exercise of such Lake Shore Option immediately prior to the Effective Time for an exercise price per Tahoe Share equal to the exercise price per share of such Lake Shore Option immediately prior to the Effective Time divided by 0.1467 and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Option being exercisable for a fraction of a Tahoe Share, then the number of Tahoe Shares subject to such Replacement Option will be rounded down to the next whole number of Tahoe Shares) and the Lake Shore Options will thereupon be cancelled. The term of expiry, conditions to and manner of exercise and other terms and conditions of the Replacement Option will be the same as the terms and conditions of the Lake Shore Options for which it is exchanged except that such Replacement Option will be governed by the terms and conditions of the Tahoe Incentive Plans and, in the event of any inconsistency or conflict the Tahoe Incentive Plans will govern. Any document previously evidencing the Lake Shore Option will thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Option will be issued; If the adjustment to the Lake Shore Options contemplated by this paragraph results in a disposition of Lake Shore Options for options to acquire Tahoe Shares or “new” Lake Shore Options, it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such disposition. In the event that the Tahoe Option In-The-Money Amount exceeds the Lake Shore Option In-The-Money Amount in respect of the Lake Shore Option exchanged in accordance with this Section 3.1(d), the number of Tahoe Shares which may be acquired on exercise of the Lake Shore Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Tahoe Option In-The-Money Amount does not exceed the Lake Shore Option In-The-Money Amount;
(e) each Temex Option to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a Replacement Option to purchase a number of Tahoe Shares equal to the product of 0.1467 multiplied by the number of Lake Shore Shares issuable on exercise of such Temex Option immediately prior to the Effective Time for an exercise price per Tahoe Share equal to the exercise price per share of such Temex Option immediately prior to the Effective Time divided by 0.1467 and rounded up to the nearest whole cent ( provided that, if the foregoing calculation results in a Replacement Option being exercisable for a fraction of a Tahoe Share, then the number of Tahoe Shares subject to such Replacement Option will be rounded down to the next whole number of Tahoe Shares) and the Temex Options will thereupon be cancelled. The term of expiry, conditions to and manner of exercise and other terms and conditions of the Replacement Option will be the same as the terms and conditions of the Temex Option for which it is exchanged except that such Replacement Option will be governed by the terms and conditions of the Tahoe Incentive Plans and, in the event of any inconsistency or conflict the Tahoe Incentive Plans will govern. Any document previously evidencing the Temex Option will thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Option will be issued. If the adjustment to the Temex Options contemplated by this paragraph results in a disposition of Temex Options for options to acquire Tahoe Shares or “new” Temex Options, it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such disposition. In the event that the Tahoe Option In-The-Money Amount exceeds the Temex Option In-The-Money Amount in respect of the Temex Option exchanged in accordance with this Section 3.1(e), the number of Tahoe Shares which may be acquired on exercise of the Temex Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Tahoe Option In-The-Money Amount does not exceed the Temex Option In-The-Money Amount;
(f) each Lake Shore Optionholder, Temex Optionholder and Lake Shore Shareholder, with respect to each step set out above applicable to such holder, will be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Lake Shore Option, Temex Option and assign Lake Shore Share, as the case may be, in accordance with such Dissent Securitiesstep; and
(bg) notwithstanding Lake Shore will file an election with the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior CRA to the Effective Time will be deemed cease to be surrendered and shall be cancelled (without any action on a public corporation for the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 purposes of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur.
Appears in 1 contract
The Arrangement. Commencing at At the Effective Time:
(a) each Bralorne Share that is issued and outstanding immediately prior to the Effective Time (excluding the Bralorne Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of the Bralorne Shares in respect of which they have exercised their Dissent Rights and any Bralorne Shares held, except as otherwise noted hereindirectly or indirectly, by Avino immediately prior to the following Effective Time) will occur be transferred, and will be deemed to occur in the following order be transferred, without any further act or formality on the part of any Person: Bralorne Shareholder’s part, to Xxxxx in exchange for Zero Point One Four (a0.140) all Dissent Securities held fully paid and non-assessable Xxxxx Common Share (the “Share Consideration”);
(b) at the same time as the step contemplated by Dissenting Securityholders will be deemed Subsection 3.2(a), with respect to have been each Bralorne Share transferred to PHM, and: Xxxxx:
(i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with Bralorne Shareholder who was the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the registered holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised Bralorne Share immediately prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof holder of such Bralorne Share and cease to have any rights or privileges as holders the name of PHM Shares; (B) the holders’ names such Bralorne Shareholder will be removed from the securities register of PHMBralorne with respect to such Bralorne Share; and
(ii) legal and beneficial title to such Bralorne Share will vest in Xxxxx and Xxxxx be and be deemed to be the transferee and the legal and beneficial owner (free and clear of any Liens) of such Bralorne Share and will be entered in the securities register of Bralorne as the sole holder of such Bralorne Share;
(c) without limiting the generality of Subsection 3.2(a) above, (i) the separate legal existence of Bralorne will continue; (ii) all of the Bralorne Shares held by Xxxxx will be cancelled without any repayment of capital in respect of those shares; (iii) Bralorne will become the wholly-owned subsidiary of Xxxxx; and (iv) the property and liabilities of Bralorne will remain the property and liabilities of Bralorne;
(d) each Bralorne Option granted and outstanding immediately prior to the Effective Time shall be deemed to be cancelled without consideration, without the need for any further act or formality, and with respect to each such Bralorne Option, the holder thereof will cease to be the holder thereof or to have any rights as a holder in respect of such Bralorne Option or under the applicable Bralorne Stock Option Plan and the name of the holder thereof will be removed from the applicable securities register of Bralorne with respect to such Bralorne Option;
(e) the Bralorne Stock Option Plan will be cancelled;
(f) each of the outstanding Bralorne Shares held by Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of the Bralorne Shares in respect of which they have exercised their Dissent Rights shall be deemed to be irrevocably transferred to Xxxxx (free and clear of any Liens) and such Dissenting Shareholders shall cease to have any rights as Bralorne Shareholders other than the right to be paid the fair value of their Bralorne Shares in accordance with Article 5; and
(g) at the same time as the step contemplated by Subsection 3.2(f) above, with respect to each Bralorne Share held by a Dissenting Shareholder:
(i) the Dissenting Shareholder who was the registered holder of such Share immediately prior to the Effective Time will cease to be the holder of such Share and the name of such Dissenting Shareholder will be removed from the securities register of Bralorne with respect to such Bralorne Share; and
(ii) legal and beneficial title to such Bralorne Share will vest in Xxxxx and Xxxxx will be, and be deemed to be, the transferee and the legal and beneficial owner (free and clear of any Liens) of such Bralorne Share and will be entered in the securities register of Bralorne as the sole holder of such Bralorne Share; provided that none of the foregoing in Subsections 3.2(a) to (g) above will occur or be deemed to occur occur, unless all of the foregoing occurs or is deemed to occuroccurs.
Appears in 1 contract
Samples: Arrangement Agreement (Avino Silver & Gold Mines LTD)
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order without any further act or formality on the part of any Person: (a) all Dissent Securities held Cardero and Coalhunter agree that the Arrangement shall be implemented in accordance with and subject to the terms and conditions contained in this Agreement and the Plan of Arrangement.
(b) Coalhunter will, as soon as reasonably practicable, but in any event not later than April 21, 2011 or such other date as is agreed to by Dissenting Securityholders will be deemed the parties, apply to have been transferred the Court pursuant to PHMSection 291 of the BCBCA for an Interim Order providing, and: among other things:
(i) each Dissenting Securityholder for the class of persons to whom notice is to be provided in respect of the Arrangement and the Coalhunter Meeting and for the manner in which such notice is to be provided;
(ii) that the requisite approval for the Coalhunter Resolutions will cease to have any rights be: (A) 662 / % of the votes 3 cast on the Coalhunter Resolutions by Coalhunter Shareholders, Coalhunter Special Warrant Holders and Coalhunter Option Holders, voting as a PHM Securityholder single class, present in person or by proxy at the Coalhunter Meeting; and (B) a simple majority of the votes cast in person or by proxy on the Coalhunter Resolutions by Coalhunter Shareholders and, Coalhunter Special Warrant Holders, voting as a single class, other than the right Cardero, its affiliates or any other person whose vote would be required to be paid excluded under Section 8.1(2) of Multilateral Instrument 61-101 were it to apply to the Arrangement;
(iii) that in all other respects, the terms, conditions and restrictions of the Coalhunter constating documents, including quorum requirements and other matters, will apply in respect of the Coalhunter Meeting;
(iv) for the grant of Dissent Rights to the registered Coalhunter Shareholders;
(v) for notice requirements with respect to the presentation of the application to the Court for the Final Order;
(vi) that the Coalhunter Meeting may be adjourned from time to time by PHMthe board of directors of Coalhunter, subject to the terms of this Agreement, without the need for additional approval of the Court; and
(vii) that the record date for Coalhunter Shareholders, Coalhunter Special Warrant Holders and Coalhunter Option Holders entitled to notice of and to vote at the Coalhunter Meeting will not change in respect of any adjournment(s) of the Coalhunter Meeting.
(c) Coalhunter will advise the Court of Cardero’s intention to rely upon the exemption under Section 3(a)(10) of the 1933 Act from the registration requirements of the 1933 Act to issue Cardero Shares to the Coalhunter Shareholders pursuant to the Arrangement.
(d) Coalhunter will convene and use commercially reasonable efforts to hold the Coalhunter Meeting in accordance with the Dissent RightsInterim Order.
(e) Subject to obtaining (i) the approvals as contemplated by the Interim Order and as may be directed by the Court in the Interim Order, the fair value of such Dissent Securities; and (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; any Regulatory approvals and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all any other consents, releases, assignments approvals and waivers, statutory or otherwise, notices required to transfer proceed with the transactions contemplated by this Agreement and assign such Dissent Securities; the Arrangement pursuant to the Plan of Arrangement, Coalhunter will, as soon as reasonably practicable thereafter, take all steps necessary to submit the Arrangement to the Court and apply for the Final Order.
(bf) notwithstanding If the terms Final Order is obtained, subject to the satisfaction, waiver or release of the PHM Option Plan, including any agreement made thereunder, conditions set forth in Article 5 (as confirmed by each PHM Option that has not been duly exercised prior party to the Effective Time will be deemed to be surrendered other in writing), Coalhunter will, as soon as reasonably practicable thereafter, make any additional filings required under Sections 292 and shall be cancelled (without any action on the part 294 of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: BCBCA.
(ig) in exchange, each Former PHM Optionholder will be entitled to receive the following: The Arrangement shall become effective at 12:01 a.m. (AVancouver time) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to on the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, or at such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality other time on the part of Effective Date as may be agreed to by the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurparties hereto.
Appears in 1 contract
The Arrangement. 3.1 The Arrangement Commencing at the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order sequence without any further authorization, act or formality on the part of by Earthstone, Earthstone Acquisition, Lynden, Lynden Securityholders or any Person: other person:
(a) all Dissent Securities each issued and outstanding Lynden Share held by a Dissenting Securityholders Shareholder will be, and will be deemed to have been be, transferred by the holder thereof, free and clear from any claims, liens or encumbrances to PHM, and: (i) Lynden for cancellation and thereupon each Dissenting Securityholder will Shareholder shall cease to have any rights as a PHM Securityholder Lynden Shareholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of for their Lynden Shares as set out in Article 4 and such Dissent Securities; (ii) the Dissenting Securityholder's Shareholder’s name will be removed as the holder of such Dissent Securities from the central securities register of PHMLynden in respect of such Lynden Share as at the Effective Time;
(b) the Lynden Options will be dealt with in accordance with Section 3.3 below;
(c) in consideration for (i) Earthstone issuing and delivering to Earthstone Acquisition the shares of Earthstone Common Stock required pursuant to Section 3.1(d)(iii) and Section 3.3, and (ii) Earthstone paying to or to the order of Earthstone Acquisition the cash required pursuant to Section 3.3 (such cash together with such shares of Earthstone Common Stock referred to as the “Closing Consideration”), Earthstone Acquisition will issue and be deemed to issue to Earthstone 1,000,000 Common Shares without par value in the authorized share structure of Earthstone Acquisition for a total issue price equal to the aggregate fair market value of the Closing Consideration as determined by the directors of Earthstone Acquisition, which issue price will be satisfied and deemed to be paid in full by Earthstone issuing, delivering and paying the Closing Consideration as contemplated by this Section 3.1(c), and there shall be added to the capital of Earthstone Acquisition for such Common Shares without par value an amount equal to the aggregate fair market value of the Closing Consideration;
(d) each issued and outstanding Lynden Share, other than any Lynden Shares held by a Dissenting Shareholder and other than the Lynden Shares already held by Earthstone, and Earthstone Acquisition will be, and will be deemed to be, transferred by the holder thereof to Earthstone Acquisition and acquired by Earthstone Acquisition, free and clear from any claims, liens or encumbrances in exchange for 0.02842 shares of Earthstone Common Stock (the “Share Exchange Ratio”) and in respect of each such Lynden Share:
(i) the holder of such Lynden Share shall cease to be the holder thereof at the Effective Time concurrently with the exchange referred to in this Section 3.1(d) and such holder’s name shall be removed from the central securities register of Lynden in respect of such Lynden Share as of the Effective Time;
(ii) Earthstone Acquisition shall be deemed to be the transferee of such Lynden Share (free from any claim, lien or encumbrance) at the Effective Time and shall be entered in the central securities register of Lynden as the holder thereof; and
(iii) Earthstone will issue and deliver to the Dissent Securities Depositary, on behalf of Earthstone Acquisition for delivery to the holder of such Lynden Share 0.02842 shares of Earthstone Common Stock, which Earthstone Common Stock will be cancelled; issued as fully paid and non-assessable shares of Earthstone and certificates representing such Earthstone Common Stock will be delivered to the Depositary, to be dealt with in accordance with Article 5 below, as the sole consideration to be given by Earthstone Acquisition therefor and the stock ledger of Earthstone will be revised accordingly;
(e) Earthstone Acquisition shall amalgamate with and into Lynden to form one corporation with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, except that the separate legal existence of Lynden will not cease and Lynden will survive the amalgamation (Lynden, as such surviving entity, “Amalco”), in accordance with the following:
(i) at the time of the amalgamation, the separate legal existence of Earthstone Acquisition shall cease without Earthstone Acquisition being liquidated or wound up and Earthstone Acquisition and Lynden shall continue as one company;
(ii) the notice of articles of Amalco and articles of Amalco shall be substantially in the form of the notice of articles and articles of Earthstone Acquisition, taking into account the transactions set forth herein;
(iii) at the time of the amalgamation, the Lynden Shares held by Earthstone Acquisition shall be cancelled without reimbursement of the capital represented thereby, each issued and outstanding Common Share without par value in the authorized share structure of Earthstone Acquisition immediately prior to the amalgamation will be automatically exchanged for one Common Share without par value in Amalco, and the capital of Amalco shall be the same as the capital of Earthstone Acquisition immediately prior to the amalgamation;
(iv) the Dissenting Securityholder property, rights and interests of Earthstone Acquisition and Lynden will be deemed the property, rights and interests of Amalco;
(v) Amalco shall be liable for the obligations of Earthstone Acquisition and Lynden;
(vi) any existing cause of action, claim or liability to have executed and delivered all consentsprosecution of Earthstone Acquisition or Lynden shall be unaffected;
(vii) any legal proceeding being prosecuted or pending by or against either Earthstone Acquisition or Lynden may be prosecuted, releasesor by its prosecution may be continued, assignments and waiversas the case may be, statutory by or otherwiseagainst Amalco;
(viii) a conviction against, required to transfer and assign such Dissent Securities; or ruling, order or judgment in favour of or against either Earthstone Acquisition or Lynden may be enforced by or against Amalco;
(bix) notwithstanding Amalco’s name shall be Lynden Energy Corp.;
(x) the terms board of directors of Amalco shall consist of the PHM Option Planfollowing person: Name: Address: Xxxxx X. Xxxxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxx, including any agreement made thereunderXxxxx 000 Xxxxxxxxx, each PHM Option that has not been duly exercised prior to Xxxxx 00000
(xi) the Effective Time will be deemed to be surrendered officers of Amalco shall consist of the following persons: Name: Title: Xxxxx X. Xxxxxxxxx President and Chief Executive Officer Xxxxxx Xxxxxxxx Chief Financial Officer and Secretary
(xii) the first auditor of Amalco shall be cancelled (without any action on Deloitte LLP, which shall hold office until the part first annual meeting of Amalco following the amalgamation or until their successors are elected or appointed, and for the purposes of Section 270 of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective TimeBusiness Corporations Act, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under provisions of this section shall constitute the PHM Option, amalgamation agreement between Earthstone Acquisition and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurLynden.
Appears in 1 contract
The Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur have occurred in the following order without any further act or formality on formality:
(i) The holders of the part Peregrine Options shall cease to be entitled to receive Peregrine Shares upon the exercise of any Person: such Peregrine Options.
(aii) all Dissent Securities The Peregrine Warrants, if outstanding immediately prior to the Effective Time, shall remain outstanding and exercisable for the Cash Consideration and Share Consideration in accordance with the applicable Peregrine Warrant Adjustment provision.
(iii) Each Peregrine Share held by a Dissenting Securityholders will Peregrine Shareholder (for greater certainty, being a Peregrine Shareholder who has complied with the Dissent Rights shall be deemed to have been transferred to PHM, and: AcquireCo (ifree of any Encumbrances) each Dissenting Securityholder will cease to have any rights as in consideration for a PHM Securityholder other than the right debt claim against AcquireCo to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Peregrine Share pursuant to the Dissent Securities; (ii) Procedures and the name of such Dissenting Securityholder's name will Peregrine Shareholder shall be removed from the register of holders of Peregrine Shares and AcquireCo shall be recorded as the registered holder of such Dissent Securities from Peregrine Shares so transferred and shall be deemed to be the central securities register legal and beneficial owner thereof (free of PHM; (iii) the Dissent Securities will be cancelled; and any Encumbrances).
(iv) Each Peregrine Share held by a Former Peregrine Shareholder shall be transferred by the Dissenting Securityholder will holder thereof to AcquireCo (free of any Encumbrances), and each Former Peregrine Shareholder shall be entitled to receive, in exchange therefor and subject to the following provisions of this Section 3, the Cash Consideration and the Share Consideration and the name of such Former Peregrine Shareholder shall be removed from the register of holders of Peregrine Shares and AcquireCo shall be recorded as the registered holder of Peregrine Shares so transferred and shall be deemed to have executed be the legal and delivered all consentsbeneficial owner thereof (free of any Encumbrances), releasesand such transfer shall be made upon the presentation and surrender, assignments and waivers, statutory by or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms on behalf of the PHM Former Peregrine Shareholder to the Depository, of the certificate formerly representing Peregrine Shares and a Letter of Transmittal.
(v) Each Peregrine Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised outstanding immediately prior to the Effective Time will be deemed to be surrendered and shall be cancelled exchanged for an option granted by Stillwater (without any action on each a “Stillwater Replacement Option” and collectively the part “Stillwater Replacement Options”) to acquire that number of Stillwater Shares equal to the holder product of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM the number of Peregrine Shares subject to the Peregrine Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, Time and (B) the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an Exchange Ratio. The exercise price per New Common Stillwater Share subject to any Stillwater Replacement Option shall be equal to the exercise price quotient of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, (A) the exercise price will per Peregrine Share subject to such Peregrine Option immediately before the Effective Time divided by (B) the Option Exchange Ratio provided that the aggregate exercise price payable on any particular exercise of Stillwater Replacement Options shall be rounded up to $0.05; provided thatthe nearest whole cent. Except as set out above, none the terms of the New PHM Options or Newco Options each Stillwater Replacement Option will be exercisable until, subsequent to the Effective Date, five trading days have elapsed same as the Peregrine Option exchanged therefor.
(vi) The stated capital in respect of each the Peregrine Shares shall be reduced to $1.00 without any repayment of PHM and Newcocapital in respect thereof.
(vii) Peregrine will file an election with the Canada Revenue Agency, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will to be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect effective prior to the PHM Option Planamalgamation described in section 3(a)(viii) hereof, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to cease to be amended accordingly; and (c) PHM will undertake a reorganization of capital within public corporation for the meaning of Section 86 purposes of the Tax Act, which organization will occur in .
(viii) Acquireco and Peregrine shall be amalgamated (the following order: “Amalgamation”) with the same effect as under section 184 of the CBCA to form Amalco and upon the Amalgamation:
(i) the identifying name Amalgamation and the continuance of Acquireco and Peregrine as Amalco becomes effective;
(ii) all of the PHM Shares will property of each Acquireco and Peregrine continues to be changed from “Common Shares” the property of Amalco (except shares and indebtedness of Acquireco and Peregrine owned by the other);
(iii) Amalco continues to “Class A Common Shares” be liable for the obligations of each of Acquireco and Peregrine (other than any obligation of Acquireco or Peregrine to the special rights other);
(iv) any existing cause of action, claim or liability to prosecution is unaffected;
(v) any civil, criminal or administrative action or proceeding pending by or against Acquireco and restrictions attached Peregrine may continue to such shares will be amended to provide that each PHM Share is entitled to two votes at prosecuted by or against Amalco;
(vi) any meeting conviction against, or ruling, order or judgment in favour of or against, Acquireco or Peregrine may be enforced by or against Amalco;
(vii) the shareholders articles and by-laws of PHM, and to reflect such amendments PHM’s articles will be Acquireco immediately before the Effective Time are deemed to be amended by replacing Section 26.3 the articles of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement Amalco, and PHM’s notice of articles will be the Certificate is deemed to be amended accordingly; the certificate of incorporation of Amalco;
(iiviii) all shares in the New Common Shares, being shares without par value, will capital stock of Peregrine shall be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (cancelled without any further act or formality on repayment of capital in respect thereof; and
(ix) no shares shall be issued by Amalco in connection with the part of the PHM Shareholder), free Amalgamation and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result shares in the issuance capital stock of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down Acquireco prior to the nearest whole number Amalgamation shall be unaffected and shall continue as shares of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurAmalco.
Appears in 1 contract
The Arrangement. 3.1 The Arrangement Commencing at the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order sequence without any further authorization, act or formality on the part of by Paramount, Calico, Calico Shareholders or any Person: other person:
(a) all Dissent Securities each issued and outstanding Calico Share held by a Dissenting Securityholders Shareholder will be, and will be deemed to have been be, transferred by the holder thereof to PHMParamount and acquired by Paramount free and clear from any claims, and: (i) liens or encumbrances, and each Dissenting Securityholder Shareholder will cease to have any rights as a PHM Securityholder Calico Shareholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value for their Calico Shares as set out in Article 4, and in respect of each such Calico Share:
(i) such Dissenting Shareholder will cease to be the holder of such Dissent Securities; (ii) Calico Share at the Effective Time and such Dissenting Securityholder's Shareholder’s name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign Calico in respect of such Dissent Securities; (b) notwithstanding the terms Calico Share as of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time Time; and
(ii) Paramount will be deemed to be surrendered and shall be cancelled the transferee of such Calico Share (without free from any action on the part claim, lien or encumbrance) as of the Effective Time and Paramount’s name will be entered in the central securities register of Calico as the holder thereof;
(b) each issued and outstanding Calico Share, other than any Calico Shares held by a Dissenting Shareholder and other than the Calico Shares already held by Paramount, will be, and will be deemed to be, transferred by the holder thereof to Paramount and acquired by Paramount free and clear from any claims, liens or encumbrances in exchange for 0.07 of a Paramount Share (the PHM Optionratio of 0.07 of a Paramount Share for each issued and outstanding Calico Share being referred to as the “Share Exchange Ratio”), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each such Calico Share:
(i) the holder of PHM such Calico Share will cease to be the holder thereof at the Effective Time concurrently with the exchange referred to in this Section 3.1(b) and Newco, such that holder’s name will be removed from the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; central securities register of Calico in respect of such Calico Share as of the Effective Time;
(ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco Paramount will be deemed to be amended the transferee of such Calico Share (free from any claim, lien or encumbrance) as of the Effective Time and Paramount’s name will be entered in the central securities register of Calico as the holder thereof; and
(iii) Paramount will issue to the holder of such Calico Share 0.07 of a Paramount Share as the sole consideration therefor and the [shareholder register] of Paramount will be revised accordingly; and and
(c) PHM all Calico Options and Calico Warrants will undertake a reorganization of capital within the meaning of Section 86 be terminated and cancelled as of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHMEffective Time with no consideration payable therefor, and to reflect such amendments PHM’s articles each holder of Calico Options or Calico Warrants will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights as a holder of Calico Options or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurCalico Warrants.
Appears in 1 contract
Samples: Arrangement Agreement (Paramount Gold Nevada Corp.)
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order sequence without any further authorization, act or formality on the part of by Earthstone, Earthstone Acquisition, Lynden, Lynden Securityholders or any Person: other person:
(a) all Dissent Securities each issued and outstanding Lynden Share held by a Dissenting Securityholders Shareholder will be, and will be deemed to have been be, transferred by the holder thereof, free and clear from any claims, liens or encumbrances to PHM, and: (i) Lynden for cancellation and thereupon each Dissenting Securityholder will Shareholder shall cease to have any rights as a PHM Securityholder Lynden Shareholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of for their Lynden Shares as set out in Article 4 and such Dissent Securities; (ii) the Dissenting Securityholder's Shareholder’s name will be removed as the holder of such Dissent Securities from the central securities register of PHMLynden in respect of such Lynden Share as at the Effective Time;
(b) the Lynden Options will be dealt with in accordance with Section 3.3 below;
(c) in consideration for (i) Earthstone issuing and delivering to Earthstone Acquisition the shares of Earthstone Common Stock required pursuant to Section 3.1(d)(iii) and Section 3.3, and (ii) Earthstone paying to or to the order of Earthstone Acquisition the cash required pursuant to Section 3.3 (such cash together with such shares of Earthstone Common Stock referred to as the “Closing Consideration”), Earthstone Acquisition will issue and be deemed to issue to Earthstone 1,000,000 Common Shares without par value in the authorized share structure of Earthstone Acquisition for a total issue price equal to the aggregate fair market value of the Closing Consideration as determined by the directors of Earthstone Acquisition, which issue price will be satisfied and deemed to be paid in full by Earthstone issuing, delivering and paying the Closing Consideration as contemplated by this Section 3.1(c), and there shall be added to the capital of Earthstone Acquisition for such Common Shares without par value an amount equal to the aggregate fair market value of the Closing Consideration;
(d) each issued and outstanding Lynden Share, other than any Lynden Shares held by a Dissenting Shareholder and other than the Lynden Shares already held by Earthstone, and Earthstone Acquisition will be, and will be deemed to be, transferred by the holder thereof to Earthstone Acquisition and acquired by Earthstone Acquisition, free and clear from any claims, liens or encumbrances in exchange for 0.02842 shares of Earthstone Common Stock (the “Share Exchange Ratio”) and in respect of each such Lynden Share:
(i) the holder of such Lynden Share shall cease to be the holder thereof at the Effective Time concurrently with the exchange referred to in this Section 3.1(d) and such holder’s name shall be removed from the central securities register of Lynden in respect of such Lynden Share as of the Effective Time;
(ii) Earthstone Acquisition shall be deemed to be the transferee of such Lynden Share (free from any claim, lien or encumbrance) at the Effective Time and shall be entered in the central securities register of Lynden as the holder thereof; and
(iii) Earthstone will issue and deliver to the Dissent Securities Depositary, on behalf of Earthstone Acquisition for delivery to the holder of such Lynden Share 0.02842 shares of Earthstone Common Stock, which Earthstone Common Stock will be cancelled; issued as fully paid and non-assessable shares of Earthstone and certificates representing such Earthstone Common Stock will be delivered to the Depositary, to be dealt with in accordance with Article 5 below, as the sole consideration to be given by Earthstone Acquisition therefor and the stock ledger of Earthstone will be revised accordingly;
(e) Earthstone Acquisition shall amalgamate with and into Lynden to form one corporation with the same effect as if they had amalgamated under Section 269 of the Business Corporations Act, except that the separate legal existence of Lynden will not cease and Lynden will survive the amalgamation (Lynden, as such surviving entity, “Amalco”), in accordance with the following:
(i) at the time of the amalgamation, the separate legal existence of Earthstone Acquisition shall cease without Earthstone Acquisition being liquidated or wound up and Earthstone Acquisition and Lynden shall continue as one company;
(ii) the notice of articles of Amalco and articles of Amalco shall be substantially in the form of the notice of articles and articles of Earthstone Acquisition, taking into account the transactions set forth herein;
(iii) at the time of the amalgamation, the Lynden Shares held by Earthstone Acquisition shall be cancelled without reimbursement of the capital represented thereby, each issued and outstanding Common Share without par value in the authorized share structure of Earthstone Acquisition immediately prior to the amalgamation will be automatically exchanged for one Common Share without par value in Amalco, and the capital of Amalco shall be the same as the capital of Earthstone Acquisition immediately prior to the amalgamation;
(iv) the Dissenting Securityholder property, rights and interests of Earthstone Acquisition and Lynden will be deemed the property, rights and interests of Amalco;
(v) Amalco shall be liable for the obligations of Earthstone Acquisition and Lynden;
(vi) any existing cause of action, claim or liability to have executed and delivered all consentsprosecution of Earthstone Acquisition or Lynden shall be unaffected;
(vii) any legal proceeding being prosecuted or pending by or against either Earthstone Acquisition or Lynden may be prosecuted, releasesor by its prosecution may be continued, assignments and waiversas the case may be, statutory by or otherwiseagainst Amalco;
(viii) a conviction against, required to transfer and assign such Dissent Securities; or ruling, order or judgment in favour of or against either Earthstone Acquisition or Lynden may be enforced by or against Amalco;
(bix) notwithstanding Amalco’s name shall be Lynden Energy Corp.;
(x) the terms board of directors of Amalco shall consist of the PHM Option Planfollowing person: Name: Address: Xxxxx X. Xxxxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxx, including any agreement made thereunderXxxxx 000 Xxxxxxxxx, each PHM Option that has not been duly exercised prior to Xxxxx 00000
(xi) the Effective Time will be deemed to be surrendered officers of Amalco shall consist of the following persons: Name: Title: Xxxxx X. Xxxxxxxxx President and Chief Executive Officer Xxxxxx Xxxxxxxx Chief Financial Officer and Secretary
(xii) the first auditor of Amalco shall be cancelled (without any action on Deloitte LLP, which shall hold office until the part first annual meeting of Amalco following the amalgamation or until their successors are elected or appointed, and for the purposes of Section 270 of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective TimeBusiness Corporations Act, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under provisions of this section shall constitute the PHM Option, amalgamation agreement between Earthstone Acquisition and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurLynden.
Appears in 1 contract
The Arrangement. Commencing at Exchange of SESI Shares for ADR Common Shares and Amalgamation
3.1 At the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order without any further act or formality on the part of any Person: formality:
(a) all Dissent Securities held by Dissenting Securityholders of the outstanding SESI Shares of the Participating SESI Shareholders will be and will be deemed to have been be transferred to PHM, and: ADR in exchange for ADR Common Shares to be issued by ADR on the basis of one ADR Common Share for each two SESI Shares of a Participating SESI Shareholder (irounding any fractions down),
(b) each Dissenting Securityholder Participating SESI Shareholder will cease to have any rights as be a PHM Securityholder other than holder of SESI Shares and the right to be paid by PHM, in accordance with the Dissent Rights, the fair value name of such Dissent Securities; (ii) the Dissenting Securityholder's name each Participating SESI Shareholder will be removed from the register of members for SESI Shares,
(c) there will be allotted and issued to each Participating SESI Shareholder as fully-paid and non-assessable shares a pro rata number of ADR Common Shares calculated on the basis of one ADR Common Share for each two SESI Shares exchanged, and the name of such Participating SESI Shareholder will be entered in the register of holders of the ADR Common Shares as the registered holder of such ADR Common Shares as maintained by the Escrow Agent, and the Escrow Agent will thereupon administer such ADR Common Shares pursuant to the Escrow Agreement,
(d) ADR will be and will be deemed to be the transferee and sole holder of the SESI Shares so transferred to it, and the name of ADR will be entered in the register of members for the SESI Shares of the Participating SESI Shareholders as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effectshares, and:
(ie) in exchange, each Former PHM Optionholder ADR Acquisition Sub will be entitled to receive then amalgamate with SESI and the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before two companies will continue as one.
3.2 From the Effective Time, the holder will receive each share certificate evidencing one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed or more SESI Shares held by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco Participating SESI Shareholders will be deemed for all purposes to be amended accordingly; and (c) PHM will undertake evidence only the right to receive a reorganization of capital within share certificate evidencing the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New ADR Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurunder Section 3.1.
Appears in 1 contract
Samples: Arrangement Agreement (Sonic Environmental Solutions Inc/Can)
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality on the part of any Person: :
(1) at the Effective Time:
(a) all Dissent Securities each Dissenting Share held by an Aphria Dissenting Securityholders will Shareholder who is ultimately determined to be entitled to be paid the fair value of the Dissenting Shares in respect of which such Aphria Dissenting Shareholder has exercised Dissent Rights shall be, and shall be deemed to have been be, transferred by the holder thereof, without any further act or formality on its part, to PHM, and: Aphria (ifree and clear of all Liens) each and such Aphria Dissenting Securityholder Shareholder will cease to be the holder thereof or to have any rights as a PHM Securityholder holder in respect of such Dissenting Share other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesDissenting Share determined and payable in accordance with Article 4; and
(iib) at the same time as the step in Section 3.1(b)(i) occurs, the name of each Aphria Dissenting Securityholder's name will Shareholder shall be removed from the register of the Aphria Shares and such Dissenting Shares shall be automatically cancelled as of the Effective Date;
(2) at the same time as the steps in Section 3.1(a) occur:
(a) each Aphria Share outstanding immediately prior to the Effective Time (other than Dissenting Shares held by Aphria Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of their Dissenting Shares as determined in accordance with Article 4), shall be, and shall be deemed to be, transferred by the holder thereof to Tilray (free and clear of all Liens) in exchange for issuance of the Share Consideration;
(b) at the same time as the step in Section 3.1(b)(i) occurs, the Amended Tilray Omnibus Plan becomes effective and the holder of each Aphria Share transferred to Tilray pursuant to Section 3.1(b)(i) shall cease to be the holder thereof, or to have any rights as a holder thereof other than the right to receive the Share Consideration issuable in respect of each Aphria Share held pursuant to Section 3.1(b)(i) and shall be removed from the register of the Aphria Shares and legal and beneficial title to each such Dissent Securities from Aphria Share shall be transferred to Tilray and Tilray will be and be deemed to be the transferee and legal and beneficial owner of such Aphria Share (free and clear of any Liens) and will be entered in the central securities register of PHMAphria as the sole holder thereof; and
(iiic) the Dissent Securities Tilray will be the holder of all of the outstanding Aphria Shares;
(3) immediately after the steps in Section 3.1(b) occur:
(a) each Aphria Option, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a stock option (a “Replacement Option”) to purchase a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares issuable on exercise of such Aphria Option immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares) for an exercise price per Tilray Share (rounded up to the nearest whole cent) equal to the exercise price per share of such Aphria Option immediately prior to the Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and the Aphria Options shall thereupon be cancelled; . The term to expiry, conditions to and (ivmanner of exercise and other terms and conditions of each of the Replacement Options shall be the same as the terms and conditions of the Aphria Option for which it is exchanged except that such Replacement Options shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. It is intended that subsection 7(1.4) of the Dissenting Tax Act apply to the exchange of Aphria Options by Aphria Securityholders resident in Canada who acquired Aphria Options by virtue of their employment. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option held by such an Aphria Securityholder will be increased such that the In-The-Money Amount of the Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the Aphria Option immediately before the exchange. For any Aphria Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, it is intended that such exchange will comply with Treasury Regulation Section 1.424(1)(a). For any Aphria Option that is a nonqualified option held by a US taxpayer, it is intended that such exchange will be implemented in a manner intended comply with Section 409A of the Code. Any document previously evidencing the Aphria Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Options shall be issued;
(b) each Aphria RSU, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an award of restricted share units granted by Tilray (the “Replacement RSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such Aphria RSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria RSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement RSUs shall be the same as the terms and conditions of the Aphria RSU for which it is exchanged except that such Replacement RSU shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria RSUs shall thereafter evidence and be deemed to evidence such Replacement RSUs and no certificates evidencing the Replacement RSUs shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria RSUs by Aphria Securityholders resident in Canada who acquired Aphria RSUs by virtue of their employment;
(c) each Aphria DSU, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an award of deferred share units granted by Tilray (the “Replacement DSUs”) in respect of a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares underlying such Aphria DSUs immediately prior to the Effective Time (rounded down to the next whole number of Tilray Shares), and the Aphria DSUs shall thereupon be cancelled. The term to expiry, conditions to and manner of receipt and other terms and conditions of each of the Replacement DSUs shall be the same as the terms and conditions of the Aphria DSU for which it is exchanged except that such Replacement DSU shall be governed by the terms and conditions of the Tilray Plan and, in the event of any inconsistency or conflict the Tilray Plan shall govern. Any document previously evidencing the Aphria DSUs shall thereafter evidence and be deemed to evidence such Replacement DSUs and no certificates evidencing the Replacement DSUs shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Aphria DSUs by Aphria Securityholders resident in Canada who acquired Aphria DSUs by virtue of their employment;
(d) each 2016 Aphria Warrant, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a warrant (a “Replacement Warrant”) to purchase a number of Tilray Shares equal to the product of the Exchange Ratio, rounded down to two decimal places, multiplied by the number of Aphria Shares issuable on exercise of such Aphria Warrant immediately prior to the Effective Time for an exercise price per Tilray Share equal to the exercise price per share of such Aphria Warrant immediately prior to the Effective Time divided by the Exchange Ratio, rounded down to two decimal places, and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Warrant being exercisable for a fraction of a Tilray Share, then the number of Tilray Shares subject to such Replacement Warrant shall be rounded down to the next whole number of Tilray Shares) and the 2016 Aphria Warrants shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Warrants shall be the same as the terms and conditions of the 2016 Aphria Warrant for which it is exchanged. Any document previously evidencing a 2016 Aphria Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued;
(e) other than the 2016 Aphria Warrants, each Aphria Warrant shall, without any further action on the part of any holder of Aphria Warrant, be continued on the same terms and conditions as were applicable immediately prior to the Effective Time, except that, pursuant to the terms of the Aphria Warrant Indenture, the terms of the Aphria Warrants shall be amended so as to substitute for the Aphria Shares subject to such Aphria Warrants such number of Tilray Shares equal to (A) the number of Aphria Shares subject to the Aphria Warrants immediately prior to the Effective Time, multiplied by (B) the Exchange Ratio, rounded down to two decimal places;
(f) the Aphria Omnibus Incentive Plan and the Aphria Warrant Indenture shall be terminated and, for greater certainty, all rights to receive any securities of the Aphria formerly held by Aphria Securityholders shall be extinguished; and
(4) no person shall have any rights, liabilities or other obligations in respect of the share capital of Aphria other than Tilray and each holder of Aphria Shares, Aphria Options, Aphria RSUs, Aphria DSUs or 2016 Aphria Warrants outstanding immediately prior to the Effective Time, with respect to each step set out above applicable to such holder, shall be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common all Aphria Shares, being shares without par valueAphria Options, will be created as a classAphria RSUs, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act Aphria DSUs or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result 2016 Aphria Warrants held by such holder in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occuraccordance with such step.
Appears in 1 contract
Samples: Arrangement Agreement (Tilray, Inc.)
The Arrangement. Commencing at At the Effective Time, except as otherwise noted hereinwithout any further act or formality, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence and at the times specified below, unless specifically noted:
(a) At the Effective Time, each Target Share held by a Dissenting Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Acquiror and Acquiror shall thereupon be obliged to pay the part amount therefor determined and payable in accordance with Article 4 hereof, and the name of any Person: each such holder shall be removed from the central securities register as a holder of Target Shares and such Target Shares so transferred to Acquiror shall thereupon be cancelled;
(ab) Five minutes following the Effective Time, the authorized capital of Target and its articles will be altered by creating an unlimited number of class A common shares without par value, which shall have attached thereto the right to two votes at all Dissent Securities held meetings of Target Shareholders, the right to dividends as and when declared by Dissenting Securityholders the directors of Target, which may be declared independently of dividends on the Target Shares, and the right to participate in the remaining assets of Target upon a winding up of Target (the “Target Class A Shares”);
(c) Ten minutes following the Effective Time, the Spinco Option Plan will come into force;
(d) Eleven minutes following the Effective Time, each Target Option shall be deemed to have been transferred amended to PHM, and: provide that:
(i) each Dissenting Securityholder will cease to have any rights all Target Options that are unvested shall be vested as a PHM Securityholder other than at the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesEffective Date; and
(ii) the Dissenting Securityholder's name will be removed no Target Options shall expire solely as a result of the holder thereof ceasing to be employed or engaged as a consultant, officer or director of Target and notwithstanding any such Dissent Securities from cessation all Target Options shall remain exercisable until their original Expiry Date.
(e) Simultaneously with the central securities register of PHM; (iiistep in Section 3.1(d) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunderhereof, each PHM Target Option held by a Target Optionholder that has not been duly exercised prior to was outstanding at the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: exchanged for:
(i) an option to purchase one Target Class A Share (a “Target Class A Option”) at an exercise price equal to the original exercise price of the Target Option multiplied by the Fair Market Value of one Target Class A Share divided by the total of the Fair Market Value of one Target Class A Share and the Fair Market Value of one Spinco Share at the Effective Date; and
(ii) an option to purchase one Spinco Share (a “Replacement Spinco Option”) at an exercise price equal to the original exercise price of the Target Option multiplied by the Fair Market Value of a Spinco Share divided by the total of the Fair Market Value of one Target Class A Share and the Fair Market Value of one Spinco Share; Except as otherwise provided in exchangethis Section 3.1, each Former PHM Optionholder the term to expiry, conditions to and manner of exercising, and all other terms and conditions of a Target Class A Option or a Replacement Spinco Option, as the case may be, will be entitled the same as the Target Option for which it is exchanged, and any document or agreement previously evidencing a Target Option shall thereafter evidence and be deemed to receive evidence such Target Class A Option or Replacement Spinco Option, as the following: (Acase may be. It is intended that subsection 7(1.4) for each PHM of the Tax Act apply to the above exchanges of Target Options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Target Class A Option registered in or a Replacement Spinco Option, as the name case may be, will be increased such that the aggregate of an Eligible PHM Optionholder that is outstanding the In-The-Money Amount of the Class A Target Option and the In-The-Money Amount of the Replacement Spinco Option immediately after the exchange does not exceed the In-The-Money Amount of the Target Option immediately before the exchange.
(f) Twelve minutes following the Effective Time, for greater certainty the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal Target Options acquired pursuant to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that exchange in the event that such exercise price so calculated is less than $0.05, the exercise price will Section 3.1(e) hereof shall be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to cancelled without payment;
(g) Fifteen minutes following the Effective DateTime, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will Target shall undertake a reorganization of capital within the meaning of Section section 86 of the Tax ActAct as follows, which organization will occur and in the following order: :
(i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” each issued and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHMoutstanding Target Share, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “exchanged for (A” to this Plan of Arrangement ) one (1) Target Class A Share; and PHM’s notice of articles will be deemed to be amended accordingly; (B) one (1) Spinco Share;
(ii) for greater certainty, the New Common Shares, being shares without par value, will authorized but unissued Target Shares shall be created cancelled and the authorized capital of Target shall be changed by deleting the Target Shares as a class, the identifying name class of the New Common Shares will be “Common Shares”, and the maximum number shares of New Common Shares which PHM will be authorized to issue will be unlimited; Target;
(iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part amount added to the stated capital of the PHM Shareholder)Target Class A Shares shall be the excess, if any, of (A) the paid-up capital (as that term is used for purposes of the Tax Act) of the Target Shares (other than Target Shares held by the Dissenting Shareholders) immediately prior to the Effective Time, less (B) the fair market value of the Spinco Shares distributed to Target Shareholders.
(h) Twenty minutes following the Effective Time, Target will surrender the Spinco Share issued to Target on incorporation to Spinco for cancellation;
(i) Thirty minutes following the Effective Time, all Target Class A Shares shall be transferred to Acquiror, free and clear of all Encumbrancesany Liens, for one and each holder thereof shall receive, in exchange therefor, the Consideration; and
(1i) New Common each holder of the Target Class A Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will shall cease to be the holders thereof holder of such share and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will such holder’s name shall be removed from the central securities register of PHMTarget with respect to such shares; and
(ii) Acquiror shall, and provided that none of the foregoing will occur or shall be deemed to occur unless all be, the transferee of such share (free and clear of any Liens) and shall be entered in the central securities register of Target as the holder thereof;
(j) Forty minutes following the Effective Time, each Target Class A Option held by a Target Optionholder will be exchanged for an option to purchase 0.355 of an Acquiror Share (a “Replacement Acquiror Option”) at an exercise price equal to the original exercise price of the foregoing occurs Class A Target Option and each such Target Class A Option shall be cancelled. Except as otherwise provided in this Section 3.1, the term to expiry, conditions to and manner of exercising, and all other terms and conditions of a Replacement Acquiror Option, will be the same as the Class A Target Option for which it is exchanged, and any document or is agreement previously evidencing a Class A Target Option shall thereafter evidence and be deemed to occurevidence such Replacement Acquiror Option. It is intended that subsection 7(1.4) of the Tax Act apply to the exchange of Target Class A Options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Acquiror Option will be increased such that the In-The-Money Amount of the Replacement Acquiror Option immediately after the exchange does not exceed the In-The-Money Amount of the Class A Target Option immediately before the exchange.
Appears in 1 contract
The Arrangement. Commencing at On the Effective Time, except as otherwise noted hereinDate, the following will occur and will be deemed to occur in the following chronological order without further act or formality, notwithstanding anything contained in the provisions attaching to any of the parties hereto, but subject to the provisions of Article 7 below:
(a) each Mydecine Share outstanding in respect of which a Dissenting Shareholder has validly exercised his, her or its Dissent Rights (each, a “Dissenting Share”) will be directly transferred and assigned by such Dissenting Shareholder to Mydecine, without any further act or formality on the part and free and clear of any Person: (a) all Dissent Securities held by Dissenting Securityholders liens, charges and encumbrances of any nature whatsoever, and will be deemed cancelled and cease to have been transferred to PHM, and: (i) each be outstanding and such Dissenting Securityholder Shareholders will cease to have any rights as a PHM Securityholder Mydecine Shareholders other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; for their Mydecine Shares by Mydecine;
(b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and Mydecine shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section section 86 of the Tax ActAct as follows, which organization will occur with the steps occurring in the following order: :
(i) the identifying name authorized share capital and Notice of Articles and Articles of Mydecine will be altered by:
(A) renaming and redesignating all of the PHM issued and unissued Mydecine Shares will be changed from as “Common SharesClass A common shares without par value” to (the “Mydecine Class A Common Shares” ”) and amending the special rights and restrictions attached to such the Mydecine Class A Common Shares to provide the holders thereof with the following rights:
(I) to vote at all meetings of shareholders of Mydecine (except meetings at which only holders of a specified class of shares are entitled to vote) and shall be entitled to two votes for each Mydecine Class A Common Share held;
(II) to receive, subject to the rights of the holders of any other class of shares, any dividends declared by Mydecine; and
(III) to receive, pari passu with the New Mydecine Shares (as defined below), and subject to the rights of the holders of any other class of shares, the remaining property of Mydecine on the liquidation, dissolution or winding up of Mydecine, whether voluntary or involuntary;
(B) creating a new class of shares consisting of an unlimited number of “common shares without par value” (the “New Mydecine Shares”) with special rights and restrictions attached to the New Mydecine Shares to provide the holders thereof with the following rights:
(I) to vote at all meetings of shareholders of Mydecine (except meetings at which only holders of a specified class of shares are entitled to vote) and shall be entitled to one vote for each New Mydecine Share held;
(II) to receive, subject to the rights of the holders of any other class of shares, any dividends declared by Mydecine; and
(III) to receive, pari passu with the Mydecine Class A Common Shares, and subject to the rights of the holders of any other class of shares, the remaining property of Mydecine on the liquidation, dissolution or winding up of Mydecine, whether voluntary or involuntary;
(ii) Mydecine’s Notice of Articles and Articles will be amended to provide that each PHM Share is entitled to two votes at any meeting of reflect the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles alterations in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (iisubsection 3.1(b)(i) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; above;
(iii) each issued and outstanding PHM Mydecine Class A Common Share outstanding on the Share Distribution Record Date will be exchanged for (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for i) one (1) New Common Mydecine Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur.
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality on the part of any Person: :
(1) at the Effective Time:
(a) all Dissent Securities each Dissenting Share held by an EHT Dissenting Securityholders will Shareholder who is ultimately determined to be entitled to be paid the fair value of the Dissenting Shares in respect of which such EHT Dissenting Shareholder has exercised Dissent Rights shall be, and shall be deemed to have been be, transferred by the holder thereof, without any further act or formality on its part, to PHM, and: SKYE (ifree and clear of all Liens) each and SKYE shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4; such EHT Dissenting Securityholder Shareholder will cease to be the holder thereof or to have any rights as a PHM Securityholder holder in respect of such Dissenting Share other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesDissenting Share determined and payable in accordance with Article 4; and
(iib) the name of each EHT Dissenting Securityholder's name Shareholder shall be removed from the register of the EHT Shares and such Dissenting Shares shall be automatically cancelled as at the Effective Date;
(2) immediately after the steps in Section 3.1(1) occur:
(a) each EHT Share outstanding immediately prior to the Effective Time (other than Dissenting Shares held by EHT Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of their Dissenting Shares as determined in accordance with Article 4 and any EHT Shares held by SKYE or any Subsidiary of SKYE), shall be, and shall be deemed to be, transferred by the holder thereof to SKYE (free and clear of all Liens) and, in consideration therefor, SKYE shall issue and deliver or cause to be delivered to such holders the Share Consideration, subject to Article 5;
(b) each holder of each EHT Share transferred to SKYE pursuant to Section 3.1(2)(a) shall cease to be the holder thereof, or to have any rights as a holder thereof other than the right to receive the Share Consideration issuable in respect of each EHT Share held pursuant to Section 3.1(2)(a) and shall be removed from the register of the EHT Shares and legal and beneficial title to each such EHT Share shall be transferred to SKYE and SKYE will be removed as and be deemed to be the holder transferee and legal and beneficial owner of such Dissent Securities from EHT Share (free and clear of any Liens) and will be entered in the central securities register of PHMEHT as the sole holder thereof; and
(iiic) SKYE will be the holder of all of the outstanding EHT Shares;
(3) at the same time as the steps in Section 3.1(2) occur:
(a) each EHT Option, to the extent it has not been exercised as at the Effective Date, will cease to represent an option or other right to acquire EHT Shares, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an option (a “Replacement Option”) to purchase a number of SKYE Shares equal to the product of the Exchange Ratio multiplied by the number of EHT Shares issuable on exercise of such EHT Option immediately prior to the Effective Time for an exercise price per SKYE Share equal to the exercise price per share of such EHT Option immediately prior to the Effective Time divided by the Exchange Ratio and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Option being exercisable for a fraction of a SKYE Share, then the number of SKYE Shares subject to such Replacement Option shall be rounded down to the next whole number of SKYE Shares) and the EHT Options shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Options shall be the same as the terms and conditions of the EHT Option for which it is exchanged and shall be governed by the terms of the SKYE Amended Omnibus Incentive Plan. Any document previously evidencing an EHT Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Options shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to such exchange of options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option will be increased such that the In-The-Money Amount of the Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the EHT Option immediately before the exchange;
(b) each EHT Warrant, to the extent it has not been exercised as at the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a warrant (a “Replacement Warrant”) to purchase a number of SKYE Shares equal to the product of the Exchange Ratio multiplied by the number of EHT Shares issuable on exercise of such EHT Warrant immediately prior to the Effective Time for an exercise price per SKYE Share equal to the exercise price per share of such EHT Warrant immediately prior to the Effective Time divided by the Exchange Ratio and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Warrant being exercisable for a fraction of a SKYE Share, then the number of SKYE Shares subject to such Replacement Warrant shall be rounded down to the next whole number of SKYE Shares) and the EHT Warrants shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Warrants shall be the same as the terms and conditions of the EHT Warrant for which it is exchanged. Any document previously evidencing an EHT Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued; and
(c) the Dissent Securities will EHT Omnibus Incentive Plan shall be cancelledterminated and, for greater certainty, all rights thereunder to receive any securities of EHT formerly held by EHT Securityholders shall be extinguished; and (iv) no person shall have any rights, liabilities or other obligations in respect of the Dissenting Securityholder will share capital of EHT other than SKYE and each EHT Shareholder and holder of EHT Options and EHT Warrants outstanding immediately prior to the Effective Time, with respect to each step set out above applicable to such holder, shall be deemed deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common all EHT Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, EHT Options and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result EHT Warrants held by such holder in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur.accordance with such step.
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at On the Effective Time, except as otherwise noted hereinDate, the following will shall occur and will be deemed to occur in the following order without any further act or formality on and with each transaction or event being deemed to occur immediately after the part occurrence of any Person: the transaction or event immediately preceding it:
(a) all Dissent Securities held by Dissenting Securityholders the aggregate stated capital and paid-up capital of the Globex Common Shares will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than divided by the right to be paid by PHM, in accordance with the Dissent Rights, the fair value number of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised Globex Common Shares outstanding immediately prior to the Effective Time Time;
(b) Globex will purchase for cancellation the Globex Common Shares of all Repurchase Demanding Shareholders who have exercised their repurchase right in strict compliance with the Procedures to Demand Repurchase of Shares. All such Globex Common Shares will be deemed to be surrendered cancelled at such time and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option Repurchase Demanding Shareholder will be governed by deleted from the terms register of Globex Shareholders. The stated capital and paid-up capital of the New PHM Option Plan and Globex Common Shares will have: (1) be reduced by an exercise price per New Common Share amount equal to the number of Globex Common Shares purchased pursuant to the exercise price of the applicable PHM Option repurchase right multiplied by the New PHM Exercise Price Ratiostated capital and paid-up capital, rounded to as the nearest half centcase may be, provided that as calculated in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (iiparagraph 3.1(a) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and above;
(c) PHM will undertake a reorganization the articles of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares Globex will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” Exhibit II annexed to this Plan of Arrangement and PHM’s notice to authorize Globex to issue:
(i) an unlimited number of articles will be deemed to be amended accordingly; Globex New Common Shares;
(ii) the New Common an unlimited number of Globex Butterfly Shares; and
(iii) an unlimited number of Globex Preference Shares, being shares without par valueissuable in series, having the rights, privileges, restrictions and conditions set out in such Exhibit;
(d) the articles of CIM will be amended to create the CIM Redemption Shares, which will have the following attributes:
(i) each CIM Redemption Share will be redeemable, subject to applicable law, at any time at the option of CIM at a redemption amount equal to the CIM Redemption Share Redemption Amount;
(ii) each CIM Redemption Share will be retractable, subject to applicable law, at any time at the option of the holder at a retraction amount equal to the CIM Redemption Share Redemption Amount;
(iii) the holders of the CIM Redemption Shares will be not entitled to any dividends;
(iv) for purposes of subsection 191(4) of the ITA, the amount specified in respect of each CIM Redemption Share which is to be redeemed, acquired or cancelled, will be created the amount specified by a director or officer of CIM in a certificate that is made (i) effective concurrently with the issuance of such CIM Redemption Share; and (ii) pursuant to a resolution of the Board of Directors of CIM duly passed and evidenced in writing authorizing the issuance of such CIM Redemption Share, such amount to be expressed as a classdollar amount (and not expressed as a formula), such amount to be not subject to change thereafter, and such amount to be equal to the identifying name fair market value of the New Common Shares will be “Common Shares”, and consideration for which such CIM Redemption Share is issued;
(v) the maximum number holder of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM CIM Redemption Share will be exchanged entitled, upon the liquidation, dissolution or winding-up of CIM, to a payment in priority to all other classes of shares of CIM of an amount equal to the CIM Redemption Share Redemption Amount to the extent of the amount of value of property available under applicable law for payment to Shareholders upon such liquidation, dissolution or winding-up, and no other amount; and
(without any further act or formality vi) CIM Redemption Shares will not entitle their holders to vote at meetings of Shareholders of CIM, other than as provided for pursuant to the QBCA;
(e) each Globex Common Share outstanding on the part of the PHM Shareholder), free and clear of all Encumbrances, Effective Date will be exchanged for one (1) Globex New Common Share and one tenth (1/10) Globex Butterfly Share. Each Shareholder will cease to be the holder of one Newco Share (provided that if the foregoing would result in Globex Common Shares so exchanged and will become the issuance holder of a fraction the same number of a Newco Share, then Globex New Common Shares and of Globex Butterfly Shares as the number of Newco Globex Common Shares otherwise issued then owned by such Shareholder. The name of such Shareholder will be rounded down removed from the register of holders of Globex Common Shares and will be added to the nearest whole number registers of Newco Shares) holders of both Globex New Common Shares and Globex Butterfly Shares with respect to the Globex New Common Shares and the PHM Globex Butterfly Shares issued to such Shareholder. The aggregate addition to the stated capital of both the Globex New Common Shares and the Globex Butterfly Shares issued by Globex on the exchange described in this paragraph 3.1(e) will equal the aggregate paid-up capital of the Globex Common Shares subject to this exchange and as calculated in paragraph 3.1(a). This paid-up capital will be allocated to the Globex New Common Shares and to the Globex Butterfly Shares based on the ratio that the fair market value of the Globex New Common Shares and the Globex Butterfly Shares, as the case may be, is of the aggregate fair market value of all of the Globex New Common Shares and the Globex Butterfly Shares. All Globex Common Shares exchanged for Globex New Common Shares and Globex Butterfly Shares will thereupon be cancelled, and: ;
(Af) each holder of Globex Butterfly Shares will transfer all of the holders Globex Butterfly Shares held by such holder to CIM in consideration for the issuance by CIM of PHM one CIM Common Share for each Globex Butterfly Share. Each holder of Globex Butterfly Shares will cease to be the holders thereof holder of the Globex Butterfly Shares so transferred and cease will become the holder of the identical number of CIM Common Shares as the number of Globex Butterfly Shares transferred by such Shareholder to have any rights or privileges as holders CIM. The name of PHM Shares; (B) the holders’ names such holder will be removed from the securities register of PHM; holders of Globex Butterfly Shares with respect to the Globex Butterfly Shares so transferred and provided that none will be added to the register of holders of CIM Common Shares as the holder of the number of CIM Common Shares so issued to such holder. CIM will be the owner of the Globex Butterfly Shares so transferred and the name of CIM will be entered in the register of holders of Globex Butterfly Shares in respect of the Globex Butterfly Shares so transferred to CIM, and CIM shall add to the stated capital account maintained for the CIM Common Shares an amount equal to the aggregate paid-up capital of the Globex Butterfly Shares acquired by CIM. If requested by a Shareholder, CIM and the Shareholder will jointly elect, in prescribed form and within the time limit referred to in subsection 85(6) of the ITA, to have the provisions of subsection 85(1) of the ITA apply to the transfer of Globex Butterfly Shares by the Shareholder to CIM;
(g) immediately following the transfer of the Globex Butterfly Shares to CIM described in paragraph 3.1(f), each holder of Globex Stock Options will dispose of its Globex Stock Options to each of Globex and CIM in consideration for the issuance to the particular holder of a new Globex Stock Option granted by Globex to acquire a Globex New Common Share and a CIM Stock Option granted by CIM to acquire a CIM Common Share in such a manner that:
(i) holders of Globex Stock Options will receive no consideration for the exchange of their Globex Stock Options other than a new Globex Stock Option and CIM Stock Option;
(ii) the original exercise price of each Globex Stock Option to each holder of Globex Stock Options will be allocated to the new Globex Stock Option and the CIM Stock Option such that an amount equal to the Exercise Price Proportion of the exercise price of each Globex Stock Option will be payable to CIM on exercise of the CIM Stock Option and an amount equal to the remainder of the original Globex Stock Option exercise price will be payable to Globex on exercise of the new Globex Stock Option. In the event that CIM is listed on the TSXV, where the allocation described in this paragraph with respect to the exercise price of a CIM Stock Option results in an exercise price that is less than $0.10, the exercise price for the CIM Stock Option shall increase to $0.10 (without resulting in an equivalent reduction in the exercise price of a new Globex Stock Option);
(iii) the expiry date of a new Globex Stock Option and a CIM Stock Option will, aside from certain differences in termination provisions, be the same as that of the corresponding Globex Stock Option;
(iv) the other material commercial terms and conditions of the new Globex Stock Options and the CIM Stock Options will generally parallel those of the Globex Stock Options, subject to the condition that there may be certain differences in recognition of the fact that Globex is listed on the TSX and CIM may be listed on the TSXV; and
(v) the Globex Stock Options will be cancelled upon the foregoing transfers. The issuance by CIM of the CIM Stock Options will occur be in anticipation of the distribution described in paragraph 3.1(i) below and will form part of the non-share consideration paid by CIM;
(h) immediately prior to the distribution described in paragraph 3.1(i) below, the property owned by Globex will be classified into the following three types of property for the purpose of the distribution, as follows:
(i) cash or near cash;
(ii) investment property; and
(iii) business property. All tax accounts of Globex, including non-capital losses, and CCEE (within the meaning assigned by subsection 66.1(6) of the ITA) will not be deemed considered property of Globex and the fair market value of such accounts will be nil. In determining the net fair market value of its cash or near cash, investment property and business property immediately before the distribution described in paragraph 3.1(i) below, the liabilities of Globex will be allocated to, and be deducted from, the calculation of the fair market value of each type of property as follows:
A. No amount will be considered to occur be a liability unless it represents a true legal liability which is capable of quantification;
B. Current liabilities of Globex will be deducted from cash or near cash; and
C. Deferred income tax will not be considered a liability. Globex will calculate the net fair market value of each type of property in the manner described in this paragraph 3.1(h);
(i) Globex will transfer to CIM each of the Transferred Assets for an amount equal to its fair market value. Immediately following the transfers, the percentage of the net fair market value of each of the type of property of Globex so transferred to CIM will, for greater certainty, approximate the Butterfly Proportion; For the purposes of this paragraph, the expression “approximate the Butterfly Proportion” means that a discrepancy in the Butterfly Proportion, if any, will not exceed one percent (1%), as determined as a percentage of the net fair market value of each type of property that CIM will receive as compared to what CIM would have received had it received its appropriate pro rata share of the net fair market value of that type of Globex’s property;
(j) as consideration for the property transferred by Globex, CIM will:
(i) have issued the CIM Stock Options as described in paragraph 3.1(g) above, and
(ii) issue five million (5,000,000) CIM Redemption Shares having an aggregate fair market value equal to the amount by which the fair market value of the Transferred Assets exceeds the fair market value of the CIM Stock Options issued pursuant to paragraph 3.1(g) above;
(k) CIM and Globex will jointly elect, in prescribed form and within the time limit referred to in subsection 85(6) of the ITA, to have the provisions of subsection 85(1) of the ITA apply to the transfer of each Transferred Asset that is an eligible property within the meaning assigned by subsection 85(1.1) of the ITA. The agreed amount for purposes of subsection 85(1) of the ITA in respect of such Transferred Asset will not exceed its fair market value;
(l) CIM will add to the stated capital maintained for the CIM Redemption Shares (i) the aggregate of the agreed amount in respect of each eligible property in respect of which an election under subsection 85(1) of the ITA will be made, and (ii) the fair market value of each of the other Transferred Assets;
(m) immediately after the distribution described in paragraph 3.1(i) above, the fair market value of each type of property forming part of the Transferred Assets, determined using a net fair market value consolidated look-through approach, will be equal to or approximate that proportion of the net fair market value of each type of property of Globex using a consolidated net fair market value consolidated look-through approach, determined immediately before that transfer, that:
a. The aggregate fair market value of the Globex Butterfly Shares owned by CIM, immediately before that transfer, is of
b. The aggregate fair market value of all Globex Butterfly Shares and all Globex Common Shares issued and outstanding immediately before that transfer;
(n) CIM will redeem all of the foregoing occurs or CIM Redemption Shares issued to Globex in paragraph 3.1(h) above and will issue to Globex, as payment, the CIM Redemption Note which will be a non-interest bearing promissory note, payable on demand having a principal amount and fair market value equal to the issue price of the CIM Redemption Shares as described in paragraph 3.1(h). Globex will accept the CIM Redemption Note as full payment for the redemption of the CIM Redemption Shares with the risk that the CIM Redemption Note may not be honoured;
(o) Globex will redeem all of the Globex Butterfly Shares acquired by CIM as described in paragraph 3.1(f) above and will issue to CIM, as payment, the Globex Redemption Note which will be a non-interest bearing promissory note, payable on demand having a principal amount and fair market value equal to the fair market value of the Globex Butterfly Shares as determined in paragraph 3.1(f). CIM will accept the Globex Redemption Note as full payment for redemption of the Globex Butterfly Shares with the risk that the Globex Redemption Note may not be honoured;
(p) Globex will satisfy its obligations under the Globex Redemption Note by transferring the CIM Redemption Note to CIM, and CIM will accept the CIM Redemption Note in full satisfaction of Globex’s obligations under the Globex Redemption Note. CIM will satisfy its obligations under the CIM Redemption Note by transferring the Globex Redemption Note to Globex, and Globex will accept the Globex Redemption Note in full satisfaction of CIM’s obligations under the CIM Redemption Note; and
(q) the articles of Globex will be amended as set out in Exhibit III annexed to this Plan of Arrangement to remove the Globex Butterfly Shares and Globex Common Shares as shares which Globex is deemed authorized to occurissue, and to change the designation of the Class A common shares, both issued and unissued, to common shares.
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following events set out below will occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality of or by Zazu, Solitario or any other person:
(a) notwithstanding the terms of the Zazu Rights Plan, the Zazu Rights Plan shall be terminated and all rights issued pursuant to the Zazu Rights Plan shall be cancelled without any payment in respect thereof;
(b) each Zazu Share held by a Dissenting Zazu Shareholder will be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Zazu and Zazu will thereupon be obliged to pay the part amount therefor determined and payable in accordance with Article 4 hereof, and the name of such holder will be removed from the central securities register of Zazu as a holder of Zazu Shares and the Zazu Shares so transferred will be cancelled;
(c) each issued Zazu Share held by a Former Zazu Shareholder (other than a Dissenting Zazu Shareholder or Solitario or any subsidiary of Solitario) will be transferred to Solitario (free and clear of any Person: Liens) and in consideration therefor Solitario will issue Solitario Shares on the basis of 0.3572 of a fully paid and non-assessable Solitario Share for each Zazu Share, subject to Section 3.3 and Article 5 hereof;
(ad) all Dissent Securities held by Dissenting Securityholders will be deemed at the same time as the steps in Sections 3.1(a) and 3.1(c), with respect to have been transferred to PHM, and: each Zazu Share,
(i) each Dissenting Securityholder the holder thereof will cease to be the holder thereof or to have any rights as a PHM Securityholder other than the right to be paid by PHM, holder in accordance with the Dissent Rights, the fair value respect of such Dissent Securities; (ii) Zazu Share and the Dissenting Securityholder's name of the holder thereof will be removed as the holder of such Dissent Securities from the central securities register of PHMZazu with respect to such Zazu Share;
(ii) legal and beneficial title to such Zazu Share (other than a Zazu Share transferred to Zazu by a Dissenting Zazu Shareholder) will vest in Solitario and Solitario will be and be deemed to be the transferee and legal and beneficial owner of such Zazu Share (free and clear of any Liens) and will be entered in the central securities register of Zazu as the sole holder thereof; and
(iii) legal and beneficial title to Zazu Shares held by a Dissenting Zazu Shareholder will be transferred to Zazu and the Dissent Securities Zazu Shares so transferred will be cancelled; ;
(e) each Zazu Option, to the extent it has not been exercised as of the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a Replacement Option to purchase a number of Solitario Shares equal to the product of 0.3572 multiplied by the number of Zazu Shares issuable on exercise of such Zazu Option immediately prior to the Effective Time for an exercise price per Solitario Share equal to the exercise price per share of such Zazu Option immediately prior to the Effective Time divided by 0.3572 and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Option being exercisable for a fraction of a Solitario Share, then the number of Solitario Shares subject to such Replacement Option will be rounded down to the next whole number of Solitario Shares) and the Zazu Options will thereupon be cancelled. The term of expiry, conditions to and manner of exercise and other terms and conditions of the Replacement Option will be the same as the terms and conditions of the Zazu Options for which it is exchanged except that such Replacement Option will be governed by the terms and conditions of the Solitario Incentive Plans and, in the event of any inconsistency or conflict the Solitario Incentive Plans will govern. Notwithstanding the foregoing, no such Replacement Option shall expire due to the holder ceasing to hold office or ceasing to be an employee or consultant and each such Replacement Option shall terminate on the earlier of (i) the date of expiry of the Zazu Option for which it was exchanged and (ivii) the Dissenting Securityholder date 18 months after the Effective Date. Any document previously evidencing the Zazu Option will thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Option will be deemed issued; If the adjustment to the Zazu Options contemplated by this paragraph results in a disposition of Zazu Options for options to acquire Solitario Shares or "new" Zazu Options, it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such disposition. In the event that the Solitario Option In-The-Money Amount exceeds the Zazu Option In-The-Money Amount in respect of the Zazu Option exchanged in accordance with this Section 3.1(e), the number of Solitario Shares which may be acquired on exercise of the Zazu Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Solitario Option In-The-Money Amount does not exceed the Zazu Option In- The-Money Amount;
(f) each Zazu Optionholder and Zazu Shareholder, with respect to each step set out above applicable to such holder, will be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Zazu Option and assign Zazu Share, as the case may be, in accordance with such Dissent Securitiesstep; and
(bg) notwithstanding Zazu will file an election with the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior CRA to the Effective Time will be deemed cease to be surrendered and shall be cancelled (without any action on a public corporation for the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 purposes of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur.
Appears in 1 contract
Samples: Arrangement Agreement (Solitario Exploration & Royalty Corp.)
The Arrangement. Commencing at the Effective TimeTime on the Effective Date, except as otherwise noted hereinsubject to the terms and conditions of the Arrangement Agreement, the following will shall occur as part of the Arrangement and will shall be deemed to occur in the following order without any further act or formality on the part of any Person: formality:
(a) each Holdco Share shall be acquired, at the option of the holder thereof (provided that the Holdco Shares of a particular Holdco must be all Dissent Securities held acquired by Dissenting Securityholders will Acquisitionco or all acquired by NSULC, and shall not be deemed to have been transferred to PHMacquired by a combination of Acquisitionco and NSULC), and: by either Acquisitionco or NSULC (and failing such choice by NSULC) and the holder (or, in the case of (i) below, holders) of such Holdco Shares shall be entitled to receive in consideration therefor, (in the case of (i) below, pro rata to the number of Holdco Shares held by the holder if more than one holder),
(i) if the Holdco Shares are sold to Acquisitionco, 0.80 Exchangeable Shares (plus the Ancillary Rights granted in connection therewith) per Franco-Nevada Share owned by the Holdco, or
(ii) if the Holdco Shares are sold to NSULC, 0.80 Newmont Shares per Franco-Nevada Share owned by the Holdco;
(b) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder issued and outstanding Franco-Nevada Share (other than Franco-Nevada Shares owned by Holdcos in respect of which (S)2.3
(a) applies) shall be acquired, at the right option of the holder thereof, by (except as provided below) either Acquisitionco or NSULC (and failing such choice by NSULC) and each Franco-Nevada Shareholder shall be entitled to be paid by PHM, receive in accordance with consideration therefor,
(i) in the Dissent Rightscase of a Dissenting Shareholder, the fair value of such Dissent Securities; each Franco-Nevada Share in respect of which he or she dissents in accordance and upon compliance with (S)3, and
(ii) in the Dissenting Securityholder's name will case of every other Franco-Nevada Shareholder, either
(A) 0.80 Exchangeable Shares (plus the Ancillary Rights granted in connection therewith) per Franco-Nevada Share acquired by Acquisitionco, or
(B) 0.80 Newmont Shares per Franco-Nevada Share acquired by NSULC;
(c) Newmont shall issue to and deposit with the Transfer Agent the Special Voting Share, in consideration of the payment to Newmont by Franco-Nevada on behalf of the Franco-Nevada Shareholders of one dollar ($1.00), to be removed thereafter held of record by the Transfer Agent as trustee for and on behalf of, and for the holder use and benefit of, the holders of such Dissent Securities from the central securities register of PHM; Exchangeable Shares in accordance with the Voting and Exchange Trust Agreement;
(iiid) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding in accordance with the terms of the PHM Option Plan, including any agreement made thereunderFranco-Nevada Options, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM a Franco-Nevada Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will shall be entitled to receive upon the following: (A) subsequent exercise of such holder's Franco-Nevada Option, in accordance with its terms, and shall accept in lieu of the number of Franco-Nevada Shares to which such holder was theretofore entitled upon such exercise but for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Timesame aggregate consideration payable therefor, the aggregate number of Newmont Shares, that such holder will would have been entitled to receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms as a result of the New PHM Option transactions contemplated by this Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price RatioArrangement, rounded to the nearest half centif, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to on the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that holder had been the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 registered holder of the Tax Actnumber of Franco-Nevada Shares to which such holder was theretofore entitled upon such exercise. For example, which organization will occur in the following order: (i) the identifying name a holder of the PHM Shares will be changed from “Common Shares” to “ten Franco-Nevada Class A Common Shares” and the special rights and restrictions attached to such shares will Warrants would be amended to provide that each PHM Share is entitled to two votes at any meeting receive new warrants bearing the same terms and conditions except that such warrants would be exercisable for 32 (i.e., 10 x 4 x 0.80) Newmont Shares for a total exercise price of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if $200. If the foregoing would result results in the issuance of a fraction of a Newco Newmont Share, then the number of Newco Newmont Shares otherwise issued will shall be rounded down to the nearest next whole number of Newco Shares) Newmont Share and the PHM total exercise price for the Newmont Shares will thereupon be cancelled, and: reduced by the exercise price of such fractional Newmont Share (Arounded up to the nearest cent);
(e) each issued and outstanding Franco-Nevada Share and Holdco Share acquired by NSULC will be transferred by NSULC to Acquisitionco in consideration for the holders issuance of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM 1000 Special Shares; and
(Bf) following the holders’ names will be removed from transactions set out in (S)2.3(a) to (S)2.3(e), Acquisitionco, each Holdco and Franco-Nevada shall amalgamate pursuant to the securities register of PHM; and provided that none provisions of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurCBCA, as more fully described below.
Appears in 1 contract
The Arrangement. (a) Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, without any further authorization, act or formality of or by Terrace, Purchaser or any other Person:
(i) all Purchaser Common Shares owned directly or indirectly by Terrace immediately prior to the Effective Time shall be hereby cancelled without any payment thereon;
(ii) each Terrace Share held by a Dissenting Shareholder in respect of which Dissent Rights have been duly and validly exercised shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all Liens, to Terrace and Terrace shall thereupon be obliged to pay the part consideration therefor determined and payable in accordance with ARTICLE 4 hereof, and the name of such holder shall be removed as a holder of Terrace Shares from the register of Terrace Shares maintained by or on behalf of Terrace and Terrace shall be recorded as the registered holder of such Terrace Shares so transferred and shall be deemed to be the legal owner of such Terrace Shares, and such Terrace Shares shall thereafter be automatically cancelled;
(iii) each Subscription Receipt outstanding immediately prior to the Effective Time shall, and shall be deemed to, have been converted, without any Person: further act or formality, into one (a1) Terrace Share and the Escrowed Funds (as defined in the Subscription Receipt Agreement) shall be released to Terrace (with all Dissent Securities held by Dissenting Securityholders will be conditions and notices for release of the Terrace Shares and the Escrowed Funds deemed to have been transferred satisfied and/or delivered to PHMthe Subscription Receipt Agent), and: (i) each Dissenting Securityholder will and the Subscription Receiptholders outstanding immediately prior to the Effective Time shall, and shall be deemed to, cease to be the holder thereof and to have any rights as a PHM Securityholder holder thereof, and the name and holder thereof shall be removed from the register of Subscription Receipts maintained by and on behalf of Terrace and added to the register of holders of Terrace Shares;
(iv) each outstanding Terrace Share (including Terrace Shares issued upon conversion of the Subscription Receipts pursuant to Section 3.1(a)(iii) above, but other than Terrace Shares held by a Dissenting Shareholder who has duly and validly exercised and not withdrawn such holder’s Dissent Rights (which Terrace Shares will have been transferred pursuant to Section 3.1(a)(ii) above)) will, without further act or formality by or on behalf of a holder of Terrace Shares, be irrevocably assigned and transferred by the holder thereof to Purchaser (free and clear of all Liens) in exchange for payment of Consideration in accordance with Section 5.1 less any amounts withheld in accordance with Section 5.4, and
A. the holder of such Terrace Share shall cease to be the holder thereof and to have any rights as a holder of such Terrace Share other than the right to be paid by PHM, receive payment in accordance with the Dissent Rights, the fair value this Plan of Arrangement;
B. such Dissent Securities; (ii) the Dissenting Securityholder's holder’s name will shall be removed as from the register of the Terrace Shares maintained by or on behalf of Terrace; and
C. Purchaser shall be deemed to be the transferee and the legal and beneficial holder of such Dissent Securities from Terrace Share (free and clear of all Liens) and shall be entered as the central securities registered holder of such Terrace Share in the register of PHM; the Terrace Shares maintained by or on behalf of Terrace.
(iiiv) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Each Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised outstanding immediately prior to the Effective Time will be deemed to be surrendered and shall be cancelled (exchanged for a Purchaser Replacement Option to purchase from Purchaser, without any action on further act or formality, the part number of Purchaser Common Shares equal to the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the followingproduct of: (A) for each PHM the number of Terrace Shares that were issuable upon exercise of such Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iiiB) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax ActConsideration, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco SharePurchaser Common Share on any particular exercise of Purchaser Replacement Options, then the number of Newco Purchaser Common Shares otherwise issued will shall be rounded down to the nearest whole number of Newco Purchaser Common Shares) and . The exercise price per Purchaser Common Share subject to any such Purchaser Replacement Option shall be an amount equal to the PHM Shares will thereupon be cancelled, andquotient of: (A) the holders exercise price per Terrace Share of PHM Shares will cease the exchanged Option immediately prior to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; Effective Time divided by (B) the holders’ names Consideration, rounded up to the nearest whole cent. Except as set out above, all terms and conditions of a Purchaser Replacement Option, including the term to expiry, exercise price, conditions to and manner of exercising, will be removed the same as the Option for which it was exchanged and any document evidencing an Option shall thereafter evidence and be deemed to evidence such Purchaser Replacement Option. If the exchange contemplated by this paragraph results in a disposition of Options, it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such disposition. Notwithstanding the terms of the Option Plan and any stock option agreement pursuant to which Options were granted, the Option Plan and all stock option agreements shall be terminated, and neither Terrace nor Purchaser shall have any Liability with respect to such plans and agreements other than the delivery of the Purchaser Replacement Options in accordance with this Plan of Arrangement;
(vi) Each issued and outstanding Warrants immediately prior to the Effective Time shall be exchanged, without further action or formality by or on behalf of the holders thereof, for a Purchaser Replacement Warrant to purchase from Purchaser the securities register number of PHMPurchaser Common Shares equal to the product of: (A) the number of Terrace Shares that were issuable upon exercise of such Warrant immediately before the Effective Time; and (B) the Consideration, provided that none if the foregoing would result in the issuance of a fraction of a Purchaser Common Share on any particular exercise of Purchaser Replacement Warrants, then the number of Purchaser Common Shares otherwise issued shall be rounded down to the nearest whole number of Purchaser Common Shares. The exercise price per Purchaser Common Share subject to any such Purchaser Replacement Warrant shall be an amount equal to the quotient of: (A) the exercise price per Terrace Share of the foregoing exchanged Warrant immediately prior to the Effective Time divided by (B) the Consideration, rounded up to the nearest whole cent. Except as set out above, all terms and conditions of a Purchaser Replacement Warrant, including the term to expiry, exercise price, conditions to and manner of exercising, will occur be the same as the Warrant for which it was exchanged and any document evidencing a Warrant shall thereafter evidence and be deemed to evidence such Purchaser Replacement Warrant. Notwithstanding the terms of any warrant agreement or indenture pursuant to which Warrants were granted, the warrant agreements or indenture shall be terminated, and neither Terrace nor Purchaser shall have any Liability with respect to such plans and agreements other than the delivery of the Purchaser Replacement Warrants in accordance with this Plan of Arrangement.
(b) The transfers and exchanges provided for in this Section 3.1 will be deemed to occur unless all on the Effective Date, notwithstanding that certain of the foregoing occurs or is deemed to occurprocedures related thereto are not completed until after the Effective Date.
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order without any further act or formality on the part of any Person: (a) all Dissent Securities held Cardero and Coalhunter agree that the Arrangement shall be implemented in accordance with and subject to the terms and conditions contained in this Agreement and the Plan of Arrangement.
(b) Coalhunter will, as soon as reasonably practicable, but in any event not later than April 21, 2011 or such other date as is agreed to by Dissenting Securityholders will be deemed the parties, apply to have been transferred the Court pursuant to PHMSection 291 of the BCBCA for an Interim Order providing, and: among other things:
(i) each Dissenting Securityholder for the class of persons to whom notice is to be provided in respect of the Arrangement and the Coalhunter Meeting and for the manner in which such notice is to be provided;
(ii) that the requisite approval for the Coalhunter Resolutions will cease to have any rights be: (A) 662/3 % of the votescast on the Coalhunter Resolutions by Coalhunter Shareholders, Coalhunter SpecialWarrant Holders and Coalhunter Option Holders, voting as a PHM Securityholder single class, present inperson or by proxy at the Coalhunter Meeting; and (B) a simple majority of the votes cast in person or by proxy on the Coalhunter Resolutions by Coalhunter Shareholders and, Coalhunter Special Warrant Holders, voting as a single class, other than the right Cardero, itsaffiliates or any other person whose vote would be required to be paid excluded underSection 8.1(2) of Multilateral Instrument 61-101 were it to apply to the Arrangement.
(iii) that in all other respects, the terms, conditions and restrictions of the Coalhunter constating documents, including quorum requirements and other matters, will apply in respect of the Coalhunter Meeting;
(iv) for the grant of Dissent Rights to the registered Coalhunter Shareholders;
(v) for notice requirements with respect to the presentation of the application to the Court for the Final Order;
(vi) that the Coalhunter Meeting may be adjourned from time to time by PHMthe board of directors of Coalhunter, subject to the terms of this Agreement, without the need for additional approval of the Court; and
(vii) that the record date for Coalhunter Shareholders, Coalhunter Special Warrant Holders and Coalhunter Option Holders entitled to notice of and to vote at the Coalhunter Meeting will not change in respect of any adjournment(s) of the Coalhunter Meeting.
(c) Coalhunter will advise the Court of Cardero’s intention to rely upon the exemption under Section 3(a)(10) of the 1933 Act from the registration requirements of the 1933 Act to issue Cardero Shares to the Coalhunter Shareholders pursuant to the Arrangement.
(d) Coalhunter will convene and use commercially reasonable efforts to hold the Coalhunter Meeting in accordance with the Dissent RightsInterim Order.
(e) Subject to obtaining (i) the approvals as contemplated by the Interim Order and as may be directed by the Court in the Interim Order, the fair value of such Dissent Securities; and (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; any Regulatory approvals and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all any other consents, releases, assignments approvals and waivers, statutory or otherwise, notices required to transfer proceed with the transactions contemplated by this Agreement and assign such Dissent Securities; the Arrangement pursuant to the Plan of Arrangement, Coalhunter will, as soon as reasonably practicable thereafter, take all steps necessary to submit the Arrangement to the Court and apply for the Final Order.
(bf) notwithstanding If the terms Final Order is obtained, subject to the satisfaction, waiver or release of the PHM Option Plan, including any agreement made thereunder, conditions set forth in Article 5 (as confirmed by each PHM Option that has not been duly exercised prior party to the Effective Time will be deemed to be surrendered other in writing), Coalhunter will, as soon as reasonably practicable thereafter, make any additional filings required under Sections 292 and shall be cancelled (without any action on the part 294 of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: BCBCA.
(ig) in exchange, each Former PHM Optionholder will be entitled to receive the following: The Arrangement shall become effective at 12:01 a.m. (AVancouver time) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to on the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, or at such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality other time on the part of Effective Date as may be agreed to by the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurparties hereto.
Appears in 1 contract
The Arrangement. Commencing at the Effective Time, except as each of the transactions or events set out below shall, unless otherwise noted hereinspecifically provided in this Section 3.1, the following will occur and will be deemed to occur in the following order sequence and immediately following the immediately preceding transaction or event, in each case without any further authorization, act or formality on the part of any Person: :
(1) each Dissent Share held by a Dissenting Shareholder shall be, and shall be deemed to be, transferred by the holder thereof to the Company for cancellation and shall be cancelled, and upon such transfer:
(a) all Dissent Securities held by such Dissenting Securityholders will be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder Shareholder will cease to be the holder of such Dissent Share or to have any rights as a PHM Securityholder holder in respect of such Dissent Share, other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesShare determined and payable in accordance with Article 4; and
(iib) the Dissenting Securityholder's name will former holders of such Dissent Shares shall be removed as from the Company’s central securities register for the Company Shares in respect of such Dissent Shares;
(2) subject to Section 5.3, each Company Multiple Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the MVS Consideration, and upon such exchange:
(a) the former holder of such Dissent Securities exchanged Company Multiple Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the MVS Consideration issuable in respect of such Company Multiple Voting Share pursuant to this Section 3.1(2);
(b) the former holders of such exchanged Company Multiple Voting Shares shall be removed from the Company’s central securities register for the Company Multiple Voting Shares;
(c) the former holders of such exchanged Company Multiple Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(2); and
(d) the Purchaser will be, and will be deemed to be, the legal and beneficial owner of such transferred Company Multiple Voting Shares and will be entered in the central securities register of PHM; the Company as the sole holder thereof;
(iii3) concurrently with the exchange of Company Multiple Voting Shares pursuant to Section 3.1(2), there shall be added to the capital of the Purchaser Subordinate Voting Shares, in respect of the Purchaser Subordinate Voting Shares issued pursuant to Section 3.1(2), an amount equal to the product obtained when (i) the paid-up capital of the Company Multiple Voting Shares immediately prior to the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Multiple Voting Shares (excluding any Dissent Securities will be cancelled; Shares) outstanding immediately prior to the Effective Time, and (ivB) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; denominator of which is the number of Company Multiple Voting Shares (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunderDissent Shares) outstanding immediately prior to the Effective Time;
(4) subject to Section 5.3, each PHM Option that has not been duly exercised Company Super Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the SVS Consideration, and upon such exchange:
(a) the former holder of such exchanged Company Super Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the SVS Consideration issuable in respect of such Company Super Voting Share pursuant to this Section 3.1(4);
(b) the former holders of such exchanged Company Super Voting Shares shall be removed from the Company’s central securities register for the Company Super Voting Shares;
(c) the former holders of such exchanged Company Super Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(4); and
(d) the Purchaser will be, and will be deemed to be, the legal and beneficial owner of such transferred Company Super Voting Shares and will be surrendered and entered in the central securities register of the Company as the sole holder thereof;
(5) concurrently with the exchange of Company Super Voting Shares pursuant to Section 3.1(4), there shall be cancelled (without any action on added to the part capital of the holder Purchaser Subordinate Voting Shares, in respect of the PHM OptionPurchaser Subordinate Voting Shares issued pursuant to Section 3.1(4), and each agreement relating an amount equal to each PHM Option will be terminated and of no further force and effect, and: the product obtained when (i) in exchange, each Former PHM Optionholder will be entitled the paid-up capital of the Company Super Voting Shares immediately prior to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Super Voting Shares (excluding any Dissent Shares) outstanding immediately prior to the Effective Time, and (B) the denominator of which is the number of Company Super Voting Shares (including any Dissent Shares) outstanding immediately prior to the Effective Time;
(6) subject to Section 5.3, each Company Subordinate Voting Share (other than any Dissent Share) outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, transferred by the holder thereof to the Purchaser in exchange for the issuance by the Purchaser to such holder of the Share Consideration, rounded down to the nearest whole Purchaser Subordinate Voting Share, and upon such exchange:
(a) the former holder of such exchanged Company Subordinate Voting Share shall cease to be the holder thereof or to have any rights as a holder thereof, other than the right to receive the Share Consideration issuable in respect of such Company Subordinate Voting Share pursuant to this Section 3.1(6);
(b) the former holders of such exchanged Company Subordinate Voting Shares shall be removed from the Company’s central securities register for the Company Subordinate Voting Shares;
(c) the former holders of such exchanged Company Subordinate Voting Shares shall be entered in the Purchaser’s central securities register for the Purchaser Subordinate Voting Shares in respect of the Purchaser Subordinate Voting Shares issued to such holders pursuant to this Section 3.1(6); and
(d) the Purchaser will receive one be, and will be deemed to be, the legal and beneficial owner of such transferred Company Subordinate Voting Shares and will be entered in the central securities register of the Company as the sole holder thereof;
(17) New PHM concurrently with the exchange of Company Subordinate Voting Shares pursuant to Section 3.1(6), there shall be added to the capital of the Purchaser Subordinate Voting Shares, in respect of the Purchaser Subordinate Voting Shares issued pursuant to Section 3.1(6), an amount equal to the product obtained when (i) the paid-up capital of the Company Subordinate Voting Shares immediately prior to the Effective Time, is multiplied by (ii) a fraction, (A) the numerator of which is the number of Company Subordinate Voting Shares (excluding any Dissent Shares) outstanding immediately prior to the Effective Time, and (B) the denominator of which is the number of Company Subordinate Voting Shares (including any Dissent Shares) outstanding immediately prior to the Effective Time;
(8) the terms of each Company Option outstanding immediately prior to purchase from PHM one (1) New Common Share for every PHM Share that could the Effective Time shall be purchased under the PHM adjusted so that, upon exercise of such Company Option, and each the holder shall, upon payment of the exercise price under such New PHM Company Option, be entitled to receive, in substitution for the number of Company Shares subject to such Company Option, that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Shares subject to such Company Option will immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio. For greater certainty, the Company Options shall not be exchanged or otherwise replaced by this Plan of Arrangement, and, subject to this Section 3.1(8), shall continue to be governed by the Company Equity Incentive Plan on the same terms and conditions as were applicable to such Company Options immediately prior to the Effective Time. Notwithstanding the foregoing, if necessary to satisfy the requirements of subsection 7(1.4) of the Tax Act, the exercise price of a Company Option adjusted in accordance with the foregoing shall be increased such that the In- The-Money Amount of the Company Option immediately after such adjustment does not exceed the In-The-Money Amount of the Company Option immediately before such adjustment. For any Company Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, it is intended that such adjustment will comply with Treasury Regulation Section 1.424-1(a). For any Company Option that is a nonqualified option held by a U.S. taxpayer, it is intended that such adjustment will be implemented in a manner intended comply with Section 409A of the Code;
(9) the terms of each Company RSU outstanding immediately prior to the New PHM Option Effective Time shall be adjusted so that, upon vesting of such Company RSU, the holder shall be entitled to receive, instead of the number of Company Shares underlying such Company RSU, that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Shares underlying such Company RSU immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio. For greater certainty, the Company RSUs shall not be exchanged or otherwise replaced by this Plan of Arrangement, and, subject to this Section 3.1(9), shall continue to be governed by the Company Equity Incentive Plan on the same terms and conditions as were applicable to such Company RSUs immediately prior to the Effective Time;
(10) each Company Warrant, other than any Certificated Company Warrant or Company MVS Warrant, outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, exchanged in accordance with its terms for a Purchaser warrant governed by the Purchaser Replacement Warrant Indentures (each, a “Replacement Warrant”) which will have: (1) entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Subordinate Voting Shares issuable on exercise of such exchanged Company Warrant immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio, at an exercise price per New Common Purchaser Subordinate Voting Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that per share under such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent exchanged Company Warrant immediately prior to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that Time divided by the New PHM Exercise Price Adjusted Exchange Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing exercise of Replacement Warrants by a holder would otherwise result in the issuance aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Newco Purchaser Subordinate Voting Share, then the aggregate number of Newco Purchaser Subordinate Voting Shares otherwise issued will issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Newco Shares) Replacement Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the PHM Shares will same as the terms and conditions of such exchanged Company Warrant, and such exchanged Company Warrant shall thereupon be cancelled. Any document previously evidencing such Company Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued;
(11) each Company Certificated Warrant outstanding immediately prior to the Effective Time shall be, and: and shall be deemed to be, adjusted in accordance with its terms for a Purchaser warrant (each, a “Replacement Certificated Warrant”) which will entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Subordinate Voting Shares issuable on exercise of such exchanged Company Certificated Warrant immediately prior to the Effective Time is multiplied by the Adjusted Exchange Ratio, at an exercise price per Purchaser Subordinate Voting Share equal to the exercise price per share under such exchanged Company Certificated Warrant immediately prior to the Effective Time divided by the Adjusted Exchange Ratio (provided that if the exercise of Replacement Certificated Warrants by a holder would otherwise result in the aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Purchaser Subordinate Voting Share, the aggregate number of Purchaser Subordinate Voting Shares otherwise issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Replacement Certificated Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the same as the terms and conditions of such exchanged Company Certificated Warrant, and such exchanged Company Certificated Warrant shall thereupon be cancelled. Any document previously evidencing such Company Certificated Warrant shall thereafter evidence and be deemed to evidence such Replacement Certificated Warrant and no certificates evidencing the Replacement Certificated Warrants shall be issued;
(12) each Company MVS Warrant outstanding immediately prior to the Effective Time shall be, and shall be deemed to be, adjusted in accordance with its terms for a Purchaser warrant (each, a “Replacement MVS Warrant”) which will entitle the holder to purchase from the Purchaser that number of Purchaser Subordinate Voting Shares equal to the product obtained when the number of Company Multiple Voting Shares issuable on exercise of such exchanged Company MVS Warrant immediately prior to the Effective Time is multiplied by the product of, (A) the holders of PHM Shares will cease to be the holders thereof Adjusted Exchange Ratio, and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from MVS Conversion Ratio, at an exercise price per Purchaser Subordinate Voting Share equal to the securities register exercise price per share under such exchanged Company MVS Warrant immediately prior to the Effective Time divided by the product of PHM; (A) the Adjusted Exchange Ratio, and (B) the MVS Conversion Ratio (provided that none if the exercise of Replacement MVS Warrants by a holder would otherwise result in the foregoing will occur aggregate number of Purchaser Subordinate Voting Shares issuable to such holder including a fraction of a Purchaser Subordinate Voting Share, the aggregate number of Purchaser Subordinate Voting Shares otherwise issuable upon such exercise shall in each case be rounded down to the nearest whole number without any payment or compensation to the holder, and that the aggregate exercise price payable on any particular exercise of Replacement MVS Warrants shall be rounded up to the nearest whole cent), and otherwise having a term to expiry, conditions to and manner of exercise and other terms and conditions the same as the terms and conditions of such exchanged Company MVS Warrant, and any document previously evidencing such Company MVS Warrant shall thereafter evidence and be deemed to occur unless all evidence such Replacement MVS Warrant and no certificates evidencing the Replacement MVS Warrants shall be issued;
(13) the Company Warrant Indentures shall be terminated; and
(14) any other rights of any other Person, other than the Purchaser or as otherwise set out above in this Section 3.1, in respect of the foregoing occurs or is deemed to occurCompany Shares, Company Warrants and Company MVS Warrants shall be extinguished.
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality of or by Rio Alto, Tahoe or any other person:
(a) the rights issued under the Rio Alto Shareholder Rights Plan shall be cancelled, without any payment or other consideration to the Rio Alto Shareholders, and the Rio Alto Shareholder Rights Plan shall terminate and cease to have any further force or effect;
(b) Following the step in Section 3.1(a):
(i) each Rio Alto Share held by a Dissenting Rio Alto Shareholder shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to Tahoe and Tahoe shall thereupon be obliged to pay the part amount therefor determined and payable in accordance with Article 4 hereof, and the name of any Person: (a) all Dissent Securities held by Dissenting Securityholders will such holder shall be removed from the central securities register of Rio Alto as a holder of Rio Alto Shares and Tahoe shall be recorded as the registered holder of the Rio Alto Shares so transferred and shall be deemed to have been be the legal owner of such Rio Alto Shares;
(ii) each issued Rio Alto Share held by a Former Rio Alto Shareholder (other than a Dissenting Rio Alto Shareholder or Tahoe or any subsidiary of Tahoe) shall be transferred to PHMTahoe (free and clear of any Liens) and in consideration therefor Tahoe shall issue Tahoe Shares on the basis of 0.227 of a fully paid and non-assessable Tahoe Share and $0.001 in cash for each Rio Alto Share, and: subject to Section 3.3 and Article 5 hereof;
(iiii) at the same time as the steps in Sections 3.1(b)(i) and 3.1(b)(ii), with respect to each Dissenting Securityholder Rio Alto Share,
A. the holder thereof will cease to be the holder thereof or to have any rights as a PHM Securityholder other than the right to be paid by PHM, holder in accordance with the Dissent Rights, the fair value respect of such Dissent Securities; (ii) Rio Alto Share and the Dissenting Securityholder's name of the holder thereof will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities Rio Alto with respect to such Rio Alto Share;
B. legal and beneficial title to such Rio Alto Share will vest in Tahoe and Tahoe will be cancelled; and be deemed to be the transferee and legal and beneficial owner of such Rio Alto Share (free and clear of any Liens) and will be entered in the central securities register of Rio Alto as the sole holder thereof;
(iv) all Rio Alto Options shall vest and in accordance with the Dissenting Securityholder terms of the Rio Alto Options, each outstanding Rio Alto Option shall, without any further action on the part of any holder of a Rio Alto Option, be deemed to have been exchanged for an option entitling the holder to receive, upon the due exercise of such Rio Alto Option (including without limitation, payment of the exercise price thereof), in lieu of Rio Alto Shares to which such holder was theretofore entitled upon such exercise, the number of Tahoe Shares equal to the product of: (A) the number of Rio Alto Shares subject to the Rio Alto Option immediately before the Effective Time, and (B) 0.227 plus the portion of a Tahoe Share that, immediately prior to the Effective Time, has a fair market value equal to $0.001 cash, provided that if the foregoing would result in the issuance of a fraction of a Tahoe Share on any particular exercise of a Rio Alto Option, then the number of Tahoe Shares otherwise issued shall be rounded down to the nearest whole number of Tahoe Shares. The exercise price per Tahoe Share subject to any such Rio Alto Option shall be an amount equal to the quotient of (A) the exercise price per Rio Alto Share subject to such Rio Alto Option immediately prior to the Effective Time divided by (B) 0.227 plus such portion of a Tahoe Share that, immediately prior to the Effective Time, has a fair market value equal to $0.001 cash (provided that the aggregate exercise price payable on any particular exercise of Rio Alto Options shall be rounded up to the nearest whole cent). Subject to the foregoing, each Rio Alto Option shall continue to be governed by and be subject to the terms of the Rio Alto Option Plan, subject to any supplemental exercise documents issued by Tahoe to holders of Rio Alto Options to facilitate the exercise of the Rio Alto Option and the payment of the corresponding portion of the exercise price with each of them. Each Rio Alto Option will remain exercisable for a period of one year from the date on which the holder of such options with Rio Alto is terminated in connection with the Arrangement, being the exercise period provided for in the Rio Alto Option Plan; If the adjustment to the Rio Alto Options contemplated by this paragraph results in a disposition of Rio Alto Options for options to acquire Tahoe Shares or “new” Rio Alto Options, it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such disposition. Therefore, in the event that the Tahoe Option In-The-Money Amount in respect of a Rio Alto Option exceeds Rio Alto Option In-The-Money Amount in respect of the Rio Alto Option, the number of Tahoe Shares which may be acquired on exercise of the Rio Alto Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Tahoe Option In-The-Money Amount in respect of the Rio Alto Option does not exceed Rio Alto Option In-The-Money Amount in respect of the Rio Alto Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged;
(v) in accordance with the terms of the SGC Options, each outstanding SGC Option shall, without any further action on the part of any holder of an SGC Option, be deemed to have been exchanged for an option entitling the holder to receive, upon the due exercise of such SGC Option (including without limitation, payment of the exercise price thereof), in lieu of Rio Alto Shares to which such holder was theretofore entitled upon such exercise, the number of Tahoe Shares equal to the product of: (A) the number of Rio Alto Shares subject to the SGC Option immediately before the Effective Time, and (B) 0.227 plus the portion of a Tahoe Share that, immediately prior to the Effective Time, has a fair market value equal to $0.001 cash, provided that if the foregoing would result in the issuance of a fraction of a Tahoe Share on any particular exercise of a SGC Option, then the number of Tahoe Shares otherwise issued shall be rounded down to the nearest whole number of Tahoe Shares. The exercise price per Tahoe Share subject to any such SGC Option shall be an amount equal to the quotient of (A) the exercise price per Rio Alto Share subject to such SGC Option immediately prior to the Effective Time divided by (B) 0.227 plus such portion of a Tahoe Share that, immediately prior to the Effective Time, has a fair market value equal to $0.001 cash (provided that the aggregate exercise price payable on any particular exercise of SGC Options shall be rounded up to the nearest whole cent). Subject to the foregoing, each SGC Option shall continue to be governed by and be subject to the terms of the SGC Option Plan, subject to any supplemental exercise documents issued by Tahoe to holders of SGC Options to facilitate the exercise of the SGC Option and the payment of the corresponding portion of the exercise price with each of them. If the adjustment to the SGC Options contemplated by this paragraph results in a disposition of SGC Options for options to acquire Tahoe Shares or “new” SGC Options, it is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such disposition. Therefore, in the event that the Tahoe Option In-The-Money Amount in respect of a SGC Option exceeds SGC Option In-The-Money Amount in respect of the SGC Option, the number of Tahoe Shares which may be acquired on exercise of the SGC Option at and after the Effective Time will be adjusted accordingly with effect at and from the Effective Time to ensure that the Tahoe Option In-The-Money Amount in respect of the SGC Option does not exceed SGC Option In-The-Money Amount in respect of the SGC Option and the ratio of the amount payable to acquire such shares to the value of such shares to be acquired shall be unchanged; and
(vi) each holder of each Rio Alto Option, SGC Option and Rio Alto Share, with respect to each step set out above applicable to such holder, shall be deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer such Rio Alto Option, SGC Option and assign Rio Alto Share, as the case may be, in accordance with such Dissent Securities; step;
(bvii) notwithstanding the terms each Rio Alto Share held by Tahoe shall be transferred to Subco in consideration of the PHM Option Planissue by Subco to Tahoe of one common share of Subco for each Rio Alto Share so transferred, including any agreement made thereunder, each PHM Option that has not been duly exercised prior and the amount added to the Effective Time stated capital of the Subco common shares will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price paid up capital (as such term is defined in the Tax Act) of the applicable PHM Option multiplied by Rio Alto Shares so transferred;
(viii) the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed stated capital in respect of each the Rio Alto Shares shall be reduced to $1.00 without any repayment of PHM and Newco, such that capital in respect thereof;
(ix) Rio Alto will file an election with the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect CRA to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed cease to be amended accordingly; and (c) PHM will undertake a reorganization of capital within public corporation for the meaning of Section 86 purposes of the Tax Act;
(x) Rio Alto and Subco shall amalgamate to continue as one corporation (“Amalco”) under Section 184(1) of the ABCA;
(xi) from and after the Effective Date:
A. Amalco will continue to be liable for all of the liabilities and obligations of Rio Alto and Subco;
B. all rights, which organization contracts, permits and interests of Rio Alto and Subco will occur continue as rights, contracts, permits and interests of Amalco as if Rio Alto and Subco continued and, for greater certainty, the amalgamation will not constitute a transfer or assignment of the rights or obligations of either of Rio Alto or Subco under any such rights, contacts, permits and interests;
C. any existing cause of action, claim or liability prosecution will be unaffected;
D. a civil, criminal or administrative action or proceeding pending by or against either Subco or Rio Alto may be continued by or against Amalco;
E. a conviction against, or ruling, order or judgement in favour of or against either Rio Alto or Subco may be enforced by or against Amalco;
F. the following order: (i) the identifying name of the PHM Shares will Amalco shall be changed from “Common Shares” Rio Alto Mining Limited”;
G. Amalco shall be authorized to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting issue an unlimited number of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being common shares without par value;
H. the articles of Amalco shall be substantially in the form of Subco’s articles;
I. the first directors of Amalco following the amalgamation shall be the directors of Subco; and
J. Amalco will own and hold all property of the Rio Alto and Subco and, without limiting the provisions hereof, all rights of creditors or others will be created as a class, the identifying name of the New Common Shares will be “Common Shares”unimpaired by such amalgamation, and the maximum number all liabilities and obligations of New Common Shares which PHM will Rio Alto and Subco, whether arising by contract or otherwise, may be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down enforced against Amalco to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights same extent as if such obligations had been incurred or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurcontracted by it.
Appears in 1 contract
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, the following events and transactions set out in Subsections (a) to (g) inclusive will occur and will be deemed to occur in the following order set out below without any further act or formality on formality, and with each event or transaction occurring and being deemed to occur immediately after the part occurrence of any Person: the immediately preceding event or transaction:
(a) all Each Almaden Common Share in respect of which an Almaden Shareholder has exercised Dissent Securities held by Dissenting Securityholders will Rights and for which the Almaden Shareholder is ultimately entitled to be paid fair value (each a "Dissent Share") shall be deemed to have been transferred to PHM, and: (i) each Dissenting Securityholder will cease to have any rights as repurchased by Almaden for cancellation in consideration for a PHM Securityholder other than the right debt-claim against Almaden to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder Share in accordance with Article 3 of this Plan of Arrangement, net of any applicable withholding tax, and such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will Share shall thereupon be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; ;
(b) notwithstanding the terms The authorized share structure of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and Almaden shall be cancelled (without any action on the part of the holder of the PHM Option), reorganized and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: altered by
(i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) changing the identifying name of the PHM issued and unissued Almaden Common Shares will be changed from “"Common Shares” shares" to “"Class A Common Shares” shares" and amending the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to the holders thereof with two votes in respect of each share held, and
(ii) creating a new class of shares without par value issuable in an unlimited number with the identifying name "Class B Common shares" having special rights and restrictions identical to those attaching to the Almaden Common Shares prior to the amendments described in paragraph (b)(i) above;
(c) The issued and outstanding Spinco Common Shares shall be subdivided into that number of Spinco Common Shares (the "Subdivision") determined by the following formula: where A is the number of issued and outstanding Almaden Common Shares at any meeting that time (i.e., for greater certainty, excluding all Dissent Shares) multiplied by 0.6, and B is the aggregate of all amounts each of which is a Fractional Share Amount in respect of an Almaden Shareholder (but, for greater certainty, excluding a Fractional Share Amount in respect of a Dissent Share), such that following the Subdivision, the number of issued and outstanding Spinco Common Shares shall be equal to the aggregate number of Spinco Common Shares distributable to the Almaden Shareholders on the Share Exchange having regard to the Round Down Provision;
(d) Each holder of an Almaden Stock Option will dispose of and be deemed to dispose of the shareholders Almaden Stock Option and in consideration therefor will concurrently receive
(i) one Almaden Replacement Stock Option having an exercise price equal to the product obtained by multiplying: (A) the exercise price of PHMthe Almaden Stock Option by (B) the quotient obtained by dividing the 5 Day VWAP of an Almaden Class B Common Share for the period beginning immediately after the conclusion of the Arrangement steps by the aggregate of the 5 Day VWAP of an Almaden Class B Common Share and the product of .6 multiplied by the 5 Day VWAP of a Spinco Common Share for that period, rounded to the nearest whole cent and subject to adjustment as set out below, and
(ii) one Spinco Replacement Stock Option having an exercise price equal to the product obtained by multiplying: (A) the quotient obtained by dividing the exercise price of the Almaden Stock Option by .6; by (B) the quotient obtained by dividing the product of .6 multiplied by the 5 Day VWAP of a Spinco Common Share for the period beginning immediately after the conclusion of the Arrangement steps by the aggregate of the 5 Day VWAP of an Almaden Class B Common Share and the product of .6 multiplied by the 5 Day VWAP of a Spinco Common Share for that period, rounded to the nearest whole cent and subject to adjustment as set out below, and nothing more and all Almaden Stock Options will thereupon be cancelled (each such disposition, receipt, and cancellation, collectively, an "Option Exchange"), provided that the exercise prices of each Almaden Replacement Stock Option and each Spinco Replacement Stock Option issued pursuant to reflect such amendments PHM’s articles will an Option Exchange shall be and be deemed to be amended by replacing Section 26.3 automatically adjusted such that the aggregate In the Money Amounts thereof immediately after the Option Exchange does not exceed the In the Money Amount of PHM’s articles in its entirety the exchanged Almaden Stock Option determined immediately before the Option Exchange, with a new Section 26.3 as set out in Appendix “A” the intention that that subsection 7(1.4) of the Income Tax Act (Canada) will apply to this Plan of Arrangement each Option Exchange;
(e) Each Almaden Warrant will be and PHM’s notice of articles will be deemed to be amended accordinglyexchanged for
(i) one Almaden Replacement Warrant having an exercise price equal to the product obtained by multiplying: (A) the exercise price of the Almaden Warrant; by (B) by the quotient obtained by dividing the 5 Day VWAP of an Almaden Class B Common Share for the period beginning immediately after the conclusion of the Arrangement steps by the aggregate of the 5 Day VWAP of an Almaden Class B Common Share and the product of .6 multiplied by the 5 Day VWAP of a Spinco Common Share for that period, rounded to the nearest whole cent, and
(ii) one Spinco Replacement Warrant having an exercise price equal to the New product obtained by multiplying: (A) the quotient obtained by dividing the exercise price of the Almaden Warrant by .6; by (B) the quotient obtained by dividing the product of .6 multiplied by the 5 Day VWAP of a Spinco Common Share for the period beginning immediately after the conclusion of the Arrangement steps by the aggregate of the 5 Day VWAP of an Almaden Class B Common Share and the product of .6 multiplied by the 5 Day VWAP of a Spinco Common Share for that period, rounded to the nearest whole cent, (each such exchange, a "Warrant Exchange"), and the Almaden Warrants will thereupon be cancelled;
(f) Each Almaden Shareholder shall dispose of all of his, her or its Almaden Common Shares held to Almaden and in consideration therefor Almaden will issue or distribute to the Almaden Shareholder
(i) the same number of Almaden Class B Common Shares, being and
(ii) that number of Spinco Common Shares equal to the product of the number of Almaden Common Shares held and 0.6, less the Fractional Share Amount, if any, in respect of that Almaden Shareholder (the "Share Exchange"), and, in respect thereof,
(iii) the name of each Almaden Shareholder shall be removed from the central securities register for the Almaden Common Shares and added to the central securities register for the Almaden Class B Common Shares and the Spinco Common Shares as the holder of the number of Almaden Class B Common Shares and Spinco Common Shares, respectively, received pursuant to the Share Exchange,
(iv) the Almaden Common Shares shall be cancelled and the capital in respect of such shares without par valueshall be reduced to nil, will and
(v) an amount equal to the capital of the Almaden Common Shares immediately before the Share Exchange less the aggregate fair market value of the Spinco Common Shares distributed on the Share Exchange shall be created as a class, added to the capital in respect of the Almaden Class B Common Shares issued on the Share Exchange; and
(g) The authorized share structure of Almaden shall be reorganized and altered by
(i) eliminating the Almaden Common Shares from the authorized share structure of Almaden; and
(ii) changing the identifying name of the New issued and unissued Almaden Class B Common Shares will be “from "Class B Common Shares”, and the maximum number of New shares" to "Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurshares".
Appears in 1 contract
The Arrangement. Commencing at On the Effective Time, except as otherwise noted hereinDate, the following will shall occur and will be deemed to occur in the following chronological order without any further act or formality on notwithstanding anything contained in the part provisions attaching to any of any Person: the securities of Radius or Rackla, but subject to the provisions of Article 5:
(a) Radius will transfer to Rackla:
(i) the Yukon Exploration Assets pursuant to the Property Purchase Agreement in consideration for the number of Rackla Shares necessary, together with the Rackla Shares issued pursuant to (a)(ii), to satisfy the obligation to issue Rackla Shares pursuant to (e) below to the Shareholders and the obligation to issue 19.9% of the Rackla Shares to Radius; and
(ii) $1 million in cash in consideration for the number of Rackla Shares and Rackla Warrants necessary, together with the Rackla Shares issued pursuant to (a)(i), to satisfy the obligation to issue Rackla Shares and Rackla Warrants pursuant to (e) below to the Shareholders and the obligation to issue 19.9% of the Rackla Shares and Rackla Warrants to Radius; and Radius and Rackla will jointly elect pursuant to the terms of Section 85 of the Tax Act at elected amounts to be determined by Radius within the limits set out in the Tax Act;
(b) at the Effective Time, the authorized share structure of Radius shall be reorganized and altered by:
(i) renaming and redesignating all Dissent Securities held by Dissenting Securityholders will of the issued and unissued Radius Shares as Class A Shares, and
(ii) creating a new class consisting of an unlimited number of common shares without par value (“New Radius Shares”);
(c) five (5) minutes after the Effective Time, the Radius’ Constating Documents shall be amended to reflect the alterations in (b) above;
(d) ten (10) minutes after the Effective Time, the Warrants shall be deemed to have been transferred be amended to PHMentitle the Warrantholder to receive, and: (i) each Dissenting Securityholder upon due exercise of the Warrant, New Radius Shares with the following adjustments which will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, determined in accordance with the Dissent Rights, terms of the warrant certificates and in good faith by the Board of Directors:
(i) the number of New Radius Shares acquirable will be increased using a formula based on the fair market value of such Dissent SecuritiesRackla; and
(ii) the Dissenting Securityholder's name exercise price of the Warrants will be removed as reduced using a formula based on the fair market value of Rackla; and
(e) fifteen (15) minutes after the Effective Time, Shareholders will receive one New Radius Share in exchange for each Class A Share held on the Distribution Record Date. In addition to New Radius Shares, the holder of Class A Shares will receive one Rackla Share and one Rackla Warrant in exchange for every three Class A Shares held on the Distribution Record Date, and such Dissent Securities Radius Shareholders shall cease to be the holders of the Class A Shares so exchanged. While each Radius Shareholder’s fractional Rackla Share and Rackla Warrant will be combined, no fractional shares will be issued and Shareholders will not receive any compensation in lieu thereof. The name of each Radius Shareholder who is so deemed to exchange his, her or its Class A Shares, shall be removed from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior Class A Shares with respect to the Effective Time will be deemed to be surrendered Class A Shares so exchanged and shall be cancelled (without any action on added to the part central securities registers of New Radius Shares and Rackla Shares and Rackla Warrants as the holder of the PHM Option)number of New Radius Shares and Rackla Shares, and each agreement relating deemed to each PHM Option will be terminated and of no further force and effect, and: (i) in have been received on the exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms . The aggregate paid up capital of the New PHM Option Plan and Radius Shares will have: (1) an exercise price per New Common Share be equal to the exercise price paid up capital of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded Class A Shares immediately prior to the nearest half cent, provided that in reorganization less the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none fair market value of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM Rackla Shares and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurRackla Warrants.
Appears in 1 contract
The Arrangement. Commencing at the Effective Time, except as otherwise noted herein, each of the following will events set out below shall occur and will be deemed to occur in the following order sequence, in each case without any further authorization, act or formality on the part of any Person: :
(1) at the Effective Time:
(a) all Dissent Securities each Dissenting Share held by an EHT Dissenting Securityholders will Shareholder who is ultimately determined to be entitled to be paid the fair value of the Dissenting Shares in respect of which such EHT Dissenting Shareholder has exercised Dissent Rights shall be, and shall be deemed to have been be, transferred by the holder thereof, without any further act or formality on its part, to PHM, and: SKYE (ifree and clear of all Liens) each and SKYE shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4; such EHT Dissenting Securityholder Shareholder will cease to be the holder thereof or to have any rights as a PHM Securityholder holder in respect of such Dissenting Share other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent SecuritiesDissenting Share determined and payable in accordance with Article 4; and
(iib) the name of each EHT Dissenting Securityholder's name Shareholder shall be removed from the register of the EHT Shares and such Dissenting Shares shall be automatically cancelled as at the Effective Date;
(2) immediately after the steps in Section 3.1(1) occur:
(a) each EHT Share outstanding immediately prior to the Effective Time (other than Dissenting Shares held by EHT Dissenting Shareholders who are ultimately determined to be entitled to be paid the fair value of their Dissenting Shares as determined in accordance with Article 4 and any EHT Shares held by SKYE or any Subsidiary of SKYE), shall be, and shall be deemed to be, transferred by the holder thereof to SKYE (free and clear of all Liens) and, in consideration therefor, SKYE shall issue and deliver or cause to be delivered to such holders the Share Consideration, subject to Article 5;
(b) each holder of each EHT Share transferred to SKYE pursuant to Section 3.1(2)(a) shall cease to be the holder thereof, or to have any rights as a holder thereof other than the right to receive the Share Consideration issuable in respect of each EHT Share held pursuant to Section 3.1(2)(a) and shall be removed from the register of the EHT Shares and legal and beneficial title to each such EHT Share shall be transferred to SKYE and SKYE will be removed as and be deemed to be the holder transferee and legal and beneficial owner of such Dissent Securities from EHT Share (free and clear of any Liens) and will be entered in the central securities register of PHMEHT as the sole holder thereof; and
(iiic) SKYE will be the holder of all of the outstanding EHT Shares;
(3) at the same time as the steps in Section 3.1(2) occur:
(a) each EHT Option, to the extent it has not been exercised as at the Effective Date, will cease to represent an option or other right to acquire EHT Shares, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for an option (a “Replacement Option”) to purchase a number of SKYE Shares equal 328972.00001/116443569.20 to the product of the Exchange Ratio multiplied by the number of EHT Shares issuable on exercise of such EHT Option immediately prior to the Effective Time for an exercise price per SKYE Share equal to the exercise price per share of such EHT Option immediately prior to the Effective Time divided by the Exchange Ratio and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Option being exercisable for a fraction of a SKYE Share, then the number of SKYE Shares subject to such Replacement Option shall be rounded down to the next whole number of SKYE Shares) and the EHT Options shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Options shall be the same as the terms and conditions of the EHT Option for which it is exchanged and shall be governed by the terms of the SKYE Amended Omnibus Incentive Plan. Any document previously evidencing an EHT Option shall thereafter evidence and be deemed to evidence such Replacement Option and no certificates evidencing the Replacement Options shall be issued. It is intended that subsection 7(1.4) of the Tax Act apply to such exchange of options. Accordingly, and notwithstanding the foregoing, if required, the exercise price of a Replacement Option will be increased such that the In-The-Money Amount of the Replacement Option immediately after the exchange does not exceed the In-The-Money Amount of the EHT Option immediately before the exchange;
(b) each EHT Warrant, to the extent it has not been exercised as at the Effective Date, will be exchanged by the holder thereof, without any further act or formality and free and clear of all Liens, for a warrant (a “Replacement Warrant”) to purchase a number of SKYE Shares equal to the product of the Exchange Ratio multiplied by the number of EHT Shares issuable on exercise of such EHT Warrant immediately prior to the Effective Time for an exercise price per SKYE Share equal to the exercise price per share of such EHT Warrant immediately prior to the Effective Time divided by the Exchange Ratio and rounded up to the nearest whole cent (provided that, if the foregoing calculation results in a Replacement Warrant being exercisable for a fraction of a SKYE Share, then the number of SKYE Shares subject to such Replacement Warrant shall be rounded down to the next whole number of SKYE Shares) and the EHT Warrants shall thereupon be cancelled. The term to expiry, conditions to and manner of exercise and other terms and conditions of each of the Replacement Warrants shall be the same as the terms and conditions of the EHT Warrant for which it is exchanged. Any document previously evidencing an EHT Warrant shall thereafter evidence and be deemed to evidence such Replacement Warrant and no certificates evidencing the Replacement Warrants shall be issued; and
(c) the Dissent Securities will EHT Omnibus Incentive Plan shall be cancelledterminated and, for greater certainty, all rights thereunder to receive any securities of EHT formerly held by EHT Securityholders shall be extinguished; and (iv) no person shall have any rights, liabilities or other obligations in respect of the Dissenting Securityholder will share capital of EHT other than SKYE and each EHT Shareholder and holder of EHT Options and EHT Warrants outstanding immediately prior to the Effective Time, with respect to each step set out above applicable to such holder, shall be deemed deemed, at the time such step occurs, to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common all EHT Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, EHT Options and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result EHT Warrants held by such holder in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occuraccordance with such step.
Appears in 1 contract
The Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur have occurred in the following order without any further act or formality on formality:
(i) The holders of the part Peregrine Options shall cease to be entitled to receive Peregrine Shares upon the exercise of any Person: such Peregrine Options.
(aii) all Dissent Securities The Peregrine Warrants, if outstanding immediately prior to the Effective Time, shall remain outstanding and exercisable for the Cash Consideration and Share Consideration in accordance with the applicable Peregrine Warrant Adjustment provision.
(iii) Each Peregrine Share held by a Dissenting Securityholders will Peregrine Shareholder (for greater certainty, being a Peregrine Shareholder who has complied with the Dissent Rights shall be deemed to have been transferred to PHM, and: AcquireCo (ifree of any Encumbrances) each Dissenting Securityholder will cease to have any rights as in consideration for a PHM Securityholder other than the right debt claim against AcquireCo to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Peregrine Share pursuant to the Dissent Securities; (ii) Procedures and the name of such Dissenting Securityholder's name will Peregrine Shareholder shall be removed from the register of holders of Peregrine Shares and AcquireCo shall be recorded as the registered holder of such Dissent Securities from Peregrine Shares so transferred and shall be deemed to be the central securities register legal and beneficial owner thereof (free of PHM; (iii) the Dissent Securities will be cancelled; and any Encumbrances).
(iv) Each Peregrine Share held by a Former Peregrine Shareholder shall be transferred by the Dissenting Securityholder will holder thereof to AcquireCo (free of any Encumbrances), and each Former Peregrine Shareholder shall be entitled to receive, in exchange therefor and subject to the following provisions of this Section 3, the Cash Consideration and the Share Consideration and the name of such Former Peregrine Shareholder shall be removed from the register of holders of Peregrine Shares and AcquireCo shall be recorded as the registered holder of Peregrine Shares so transferred and shall be deemed to have executed be the legal and delivered all consentsbeneficial owner thereof (free of any Encumbrances), releasesand such transfer shall be made upon the presentation and surrender, assignments and waivers, statutory by or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms on behalf of the PHM Former Peregrine Shareholder to the Depository, of the certificate formerly representing Peregrine Shares and a Letter of Transmittal.
(v) Each Peregrine Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised outstanding immediately prior to the Effective Time, whether vested or not, shall be exchanged for a fully-vested option granted by Stillwater (each a “Stillwater Replacement Option” and collectively the “Stillwater Replacement Options”) to acquire that number of Stillwater Shares equal to the product of (A) the number of Peregrine Shares subject to the Peregrine Option immediately before the Effective Time and (B) the Option Exchange Ratio. The exercise price per Stillwater Share subject to any Stillwater Replacement Option shall be equal to the quotient of (A) the exercise price per Peregrine Share subject to such Peregrine Option immediately before the Effective Time divided by (B) the Option Exchange Ratio. Except as set out above, the terms of each Stillwater Replacement Option will be deemed to be surrendered and the same as the Peregrine Option exchanged therefor, but the expiry date shall be cancelled (without any action on the part of same as if the holder of the PHM Option)Peregrine Options had not ceased to be employed by Peregrine.
(vi) The stated capital in respect of the Peregrine Shares shall be reduced to $1.00 without any repayment of capital in respect thereof.
(vii) Peregrine will file an election with the Canada Revenue Agency, to be effective prior to the amalgamation described in section 3(a)(viii) hereof, to cease to be a public corporation for the purposes of the Tax Act.
(viii) Acquireco and each agreement relating Peregrine shall be amalgamated (the “Amalgamation”) with the same effect as under section 184 of the CBCA to each PHM Option will be terminated form Amalco and of no further force and effect, and: upon the Amalgamation:
(i) the Amalgamation and the continuance of Acquireco and Peregrine as Amalco becomes effective;
(ii) all of the property of each Acquireco and Peregrine continues to be the property of Amalco (except shares and indebtedness of Acquireco and Peregrine owned by the other);
(iii) Amalco continues to be liable for the obligations of each of Acquireco and Peregrine (other than any obligation of Acquireco or Peregrine to the other);
(iv) any existing cause of action, claim or liability to prosecution is unaffected;
(v) any civil, criminal or administrative action or proceeding pending by or against Acquireco and Peregrine may continue to be prosecuted by or against Amalco;
(vi) any conviction against, or ruling, order or judgment in exchangefavour of or against, each Former PHM Optionholder will Acquireco or Peregrine may be entitled to receive enforced by or against Amalco;
(vii) the following: (A) for each PHM Option registered in the name articles and by-laws of an Eligible PHM Optionholder that is outstanding Acquireco immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be Time are deemed to be amended accordingly; and (c) PHM will undertake a reorganization the articles of capital within the meaning of Section 86 of the Tax ActAmalco, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share Certificate is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended the certificate of incorporation of Amalco;
(viii) all shares in the capital stock of Peregrine shall be cancelled without any repayment of capital in respect thereof;
(ix) no shares shall be issued by replacing Section 26.3 Amalco in connection with the Amalgamation and all shares in the capital stock of PHM’s articles in its entirety with a new Section 26.3 Acquireco prior to the Amalgamation shall be unaffected and shall continue as set out in Appendix “A” to this Plan shares of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; Amalco;
(iix) the New Common Shares, being shares without par value, will be created as a class, board of directors of Amalco shall consist of the identifying following individuals: ●; and
(xi) the name of the New Common Shares will Amalco shall be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occur●.
Appears in 1 contract
The Arrangement. Commencing at The Arrangement
3.1 At the Effective Time, except as otherwise noted herein, the following will occur and will be deemed to occur in the following order sequence without any further authorization, act or formality on the part of by Genco, Silvermex or any Person: other person:
(a) all Dissent Securities each of the issued and outstanding Silvermex Common Shares, other than those held by Dissenting Securityholders Shareholders, will be deemed to be acquired by Genco, free and clear of any Liens, in exchange for 0.90909 Pre-Split Genco Shares, if the Genco Share Split has not occurred, or one Genco Common Share, if the Genco Share Split has occurred, (the “Exchange Ratio”), provided that the aggregate number of Genco Common Shares payable to any Silvermex Shareholder, if calculated to include a fraction of a Genco Common Share, will be rounded to the nearest whole Genco Common Share;
(b) each Silvermex Shareholder will be deemed to have transferred such Silvermex Common Shares held by him to Genco and Genco will be deemed to have issued Genco Common Shares in exchange therefor;
(c) each Silvermex Shareholder will cease to be a holder of Silvermex Common Shares and the name of each Silvermex Shareholder will be removed from the central securities register of Silvermex as of the Effective Date;
(d) the certificate representing each Silvermex Common Share will be deemed to have been transferred to PHM, and: cancelled as of the Effective Date;
(ie) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder Silvermex Shareholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer implement and assign such Dissent Securities; carry out the Arrangement;
(bf) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time Genco will be and will be deemed to be surrendered the transferee of all Silvermex Common Shares, free and shall clear of any Liens, and will be cancelled (without any action on entered in the part central securities register of Silvermex as the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and such Silvermex Common Shares as of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one Date; and
(1g) New PHM each outstanding Silvermex Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option which will be governed by the terms of the New PHM Genco Share Option Plan Plan) will be deemed exercisable for Genco Common Shares, such that: (i) on exercise of each Silvermex Option, the holder will be entitled to acquire, and will have: (1) an exercise price per New Common Share equal to the exercise price accept in lieu of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded number of Silvermex Common Shares to the nearest half cent, provided that in the event that which such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to holder was entitled immediately before the Effective Date, five trading days have elapsed in respect the number of each Genco Common Shares equal to the product of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (iiA) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect number of Silvermex Common Shares subject to the PHM Silvermex Option Plan, any PHM Option or any agreements made in connection therewith; and immediately before the Effective Date multiplied by (iiiB) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax ActExchange Ratio, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Genco Common Share, then the number of Newco Genco Common Shares otherwise issued on exercise of the Silvermex Option will be rounded down to the nearest whole number of Newco Genco Common Shares; and (ii) and each such Silvermex Option will have an exercise price per Genco Common Share, denominated in the PHM Shares will thereupon be cancelledsame currency as applicable to the Silvermex Option for which it is exchanged, and: of an amount (Arounded up to the nearest one-hundredth of a dollar) equal to the quotient of (C) the holders of PHM Shares will cease exercise price per Silvermex Common Share subject to be such Silvermex Option immediately before the holders thereof and cease to have any rights or privileges as holders of PHM Shares; Effective Date divided by (BD) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurExchange Ratio.
Appears in 1 contract
The Arrangement. Commencing at The transactions contemplated by this Agreement shall be effected by way of Arrangement pursuant to section 130 of the Effective TimeNSCA on the terms and subject to the conditions contained in this Agreement and the Plan of Arrangement. Pursuant to the Arrangement:
(a) Etruscan will be amalgamated with Subco;
(b) Upon the amalgamation of Etruscan and Subco:
(i) all Etruscan Common Shares (other than Etruscan Common Shares held by Endeavour and its affiliates and by dissenting Etruscan Shareholders) shall be cancelled without any repayment of capital in respect thereof and the former holders of such Etruscan Common Shares will receive 0.0932 of an Endeavour Common Share and $0.26 in cash for each such Etruscan Common Share;
(ii) each outstanding Etruscan Warrant will be terminated and the former holder will receive a Replacement Warrant entitling the holder to receive, except as for the same aggregate exercise price, 0.0932 of an Endeavour Common Share and $0.26 in cash for each such Etruscan Common Share previously issuable under such terminated Etruscan Warrant. The term to expiry, conditions to and manner of exercising, vesting schedule and all other terms and conditions of such Replacement Warrant will otherwise noted hereinbe unchanged, the following will occur and will any document or agreement previously evidencing an Etruscan Warrant shall thereafter evidence and be deemed to occur in the following order without any further act or formality on the part of any Person: (a) all Dissent Securities held by Dissenting Securityholders will be deemed to have been transferred to PHM, evidence such Replacement Warrant; and: (i) each Dissenting Securityholder will cease to have any rights as a PHM Securityholder other than the right to be paid by PHM, in accordance with the Dissent Rights, the fair value of such Dissent Securities; (ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM;
(iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to transfer and assign such Dissent Securities; (b) notwithstanding the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM outstanding Etruscan Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the former holder will receive one (1) New PHM a Replacement Option entitling the holder to purchase from PHM one (1) New receive 0.0932 of an Endeavour Common Share for every PHM each Etruscan Common Share that could be purchased previously issuable under the PHM such terminated Etruscan Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) at an exercise price per New 0.0932 of an Endeavour Common Share equal to the exercise price per Etruscan Common Share of the applicable PHM such Etruscan Option multiplied by the New PHM Exercise Price Ratioless $0.26. The term to expiry, rounded conditions to the nearest half centand manner of exercising, provided that in the event that vesting schedule and all other terms and conditions of such exercise price so calculated is less than $0.05, the exercise price Replacement Option will otherwise be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminatedunchanged, and neither PHM nor any PHM Optionholder will have any rights, liabilities document or obligations with respect to the PHM agreement previously evidencing an Etruscan Option Plan, any PHM Option or any agreements made in connection therewith; shall thereafter evidence and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to evidence such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; (ii) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, and: (A) the holders of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders of PHM Shares; (B) the holders’ names will be removed from the securities register of PHM; and provided that none of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurReplacement Option.
Appears in 1 contract
Samples: Arrangement Agreement
The Arrangement. Commencing at At the Effective Time, except as otherwise noted herein, the following will shall occur and will shall be deemed to occur have occurred in the following order without any further act or formality on the part of any Person: formality:
(a) all Dissent Securities YGC will change its name to Yukon-Nevada Gold Corp., or such other name as may be approved by the directors of YGC and Queenstake acting reasonably, subject to Appropriate Regulatory Approval;
(b) each Queenstake Share, other than Queenstake Shares held by Dissenting Securityholders Queenstake Shareholders who have validly exercised Dissent Rights, will be deemed to have been be transferred to PHMYGC and, and: subject to Section 4.2 each such Queenstake Shareholder will receive one New YGC Share for every ten Queenstake Shares held;
(c) each Queenstake Option, to the extent that it has not been exercised, shall subject to Section 4.2, be transferred to YGC in exchange for a New YGC Option to purchase that number of New YGC Shares determined by dividing the number of Queenstake Shares subject to each such Queenstake Option by ten at an exercise price per New YGC Share equal to the exercise price per Queenstake Share of each such Queenstake Option multiplied by ten, with a term to expiry equivalent to the Queenstake Option. If the foregoing calculation results in the option being exercisable for a fraction of a New YGC Share, then the number of New YGC Shares subject to such option shall be rounded down to the nearest whole number of shares and the aggregate exercise price for the option will be reduced by the exercise price for one New YGC Share multiplied by the fractional entitlement. All options issued by YGC on such exchange shall be governed by the New YGC Stock Option Plan;
(d) each Queenstake Warrant, to the extent that it has not been exercised, shall subject to Section 4.2, be transferred to YGC in exchange for a New YGC Warrant to purchase that number of New YGC Shares determined by dividing the number of Queenstake Shares subject to each such Queenstake Warrant by ten at an exercise price per New YGC Share equal to the exercise price per Queenstake Share of each such Queenstake Warrant multiplied by ten, with a term to expiry equivalent to the Queenstake Warrant. If the foregoing calculation results in the warrant being exercisable for a fraction of a New YGC Share, then the number of New YGC Shares subject to such warrant shall be rounded down to the nearest whole number of shares and the aggregate exercise price for the warrant will be reduced by the exercise price for one New YGC Share multiplied by the fractional entitlement. All warrants issued by YGC on such exchange shall be governed by the certificates representing such New YGC Warrants;
(e) with respect to each of the Queenstake Shares, Queenstake Stock Options and Queenstake Warrants transferred to YGC pursuant to the Plan of Arrangement, at the Effective Time, without any further act or formality:
(i) each Dissenting Securityholder will the holder thereof shall cease to have any rights as a PHM Securityholder other than be the right to be paid by PHM, in accordance with the Dissent Rights, the fair value holder of such Dissent Securitiessecurity and the name of the holder thereof shall be removed from the register of such securities of Queenstake; and
(ii) the Dissenting Securityholder's name will be removed as the holder of such Dissent Securities from the central securities register of PHM; (iii) the Dissent Securities will be cancelled; and (iv) the Dissenting Securityholder will thereof shall be deemed to have executed and delivered all consents, releases, assignments and waivers, statutory or otherwise, required to validly transfer and assign such Dissent Securities; (b) notwithstanding security to YGC in accordance with the terms of the PHM Option Plan, including any agreement made thereunder, each PHM Option that has not been duly exercised prior to the Effective Time will be deemed to be surrendered and shall be cancelled (without any action on the part of the holder of the PHM Option), and each agreement relating to each PHM Option will be terminated and of no further force and effect, and: (i) in exchange, each Former PHM Optionholder will be entitled to receive the following: (A) for each PHM Option registered in the name of an Eligible PHM Optionholder that is outstanding immediately before the Effective Time, the holder will receive one (1) New PHM Option to purchase from PHM one (1) New Common Share for every PHM Share that could be purchased under the PHM Option, and each such New PHM Option will be governed by the terms of the New PHM Option Plan and will have: (1) an exercise price per New Common Share equal to the exercise price of the applicable PHM Option multiplied by the New PHM Exercise Price Ratio, rounded to the nearest half cent, provided that in the event that such exercise price so calculated is less than $0.05, the exercise price will be rounded up to $0.05; provided that, none of the New PHM Options or Newco Options will be exercisable until, subsequent to the Effective Date, five trading days have elapsed in respect of each of PHM and Newco, such that the New PHM Exercise Price Ratio and Newco Exercise Price Ratio have been determined; (ii) the PHM Option Plan will be terminated, and neither PHM nor any PHM Optionholder will have any rights, liabilities or obligations with respect to the PHM Option Plan, any PHM Option or any agreements made in connection therewith; and (iii) the respective option registers of PHM and Newco will be deemed to be amended accordingly; and (c) PHM will undertake a reorganization of capital within the meaning of Section 86 of the Tax Act, which organization will occur in the following order: (i) the identifying name of the PHM Shares will be changed from “Common Shares” to “Class A Common Shares” and the special rights and restrictions attached to such shares will be amended to provide that each PHM Share is entitled to two votes at any meeting of the shareholders of PHM, and to reflect such amendments PHM’s articles will be deemed to be amended by replacing Section 26.3 of PHM’s articles in its entirety with a new Section 26.3 as set out in Appendix “A” to this Plan of Arrangement and PHM’s notice of articles will be deemed to be amended accordingly; Arrangement.
(iif) the New Common Shares, being shares without par value, will be created as a class, the identifying name of the New Common Shares will be “Common Shares”, and the maximum number of New Common Shares which PHM will be authorized to issue will be unlimited; (iii) each outstanding PHM Share will be exchanged (without any further act or formality on the part of the PHM Shareholder), free and clear of all Encumbrances, for one (1) New Common Share and one tenth (1/10) of one Newco Share (provided that if the foregoing would result in the issuance of a fraction of a Newco Share, then the number of Newco Shares otherwise issued directors of YGC will be rounded down to the nearest whole number of Newco Shares) and the PHM Shares will thereupon be cancelled, fixed at ten (10); and:
(Ag) the holders board of PHM Shares will cease to be the holders thereof and cease to have any rights or privileges as holders directors of PHM Shares; (B) the holders’ names YGC will be removed comprised of Xxxxxx Xxxxxxx, Xxxx Xxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxx, E. Xxxx Xxxxxxxxx, Xxx XxxXxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxx, subject to YGC having received consents to act from the securities register of PHM; and provided that none each of the foregoing will occur or be deemed to occur unless all of the foregoing occurs or is deemed to occurforegoing.
Appears in 1 contract
