SHARE TRANSFER AGREEMENT
Exhibit 99.8
[Unofficial translation. In case of discrepancy, the signed French version shall take precedence.]
THIS AGREEMENT dated as of April 1, 2024.
AMONG:
CAISSE DE DÉPÔT ET PLACEMENT DU QUÉBEC,
a legal person governed by an Act respecting the Caisse de dépôt et placement du Québec,
(hereinafter called “CDPQ”),
AND
NEON MAPLE PURCHASER INC.,
a corporation governed by the Canada Business Corporations Act,
(hereinafter called “Purchaser”),
AND
NEON MAPLE PARENT INC.,
a corporation governed by the Business Corporations Act (Ontario),
(hereinafter called “Parent”),
WHEREAS:
| A. | Purchaser and Nuvei Corporation (the “Company”) wish to enter into an arrangement agreement to be dated as of the date hereof (the “Arrangement Agreement”) providing for, among other things, the acquisition by Purchaser (the “Arrangement”) of all of the issued and outstanding subordinate voting shares (the “Subordinate Voting Shares”) and multiple voting shares of the Company (the “Multiple Voting Shares” and together with the Subordinate Voting Shares, the “Shares”), other than the CDPQ Shares (as defined below) and certain Shares held by certain shareholders (the “Other Rollover Shareholders”) who have entered into a share transfer agreement or a share transfer and incentive award exchange agreement with Purchaser and Parent (together with this Share Transfer Agreement, the “Rollover Agreements”) substantially concurrently herewith, by way of a plan of arrangement under Section 192 of the Canada Business Corporations Act (the “Plan of Arrangement”); |
| B. | CDPQ is the registered and/or beneficial owner of and has voting control or direction over 17,652,159 multiple voting shares of the Company (the “CDPQ Shares”); |
| C. | Subject only to the occurrence of the Closing prior to a termination of this share transfer agreement (together with the Exhibits attached hereto, the “Agreement”) pursuant to Section 7 hereof and in accordance with, and effective at the respective times specified in, the Plan of Arrangement, CDPQ will (i) sell to Purchaser, and Purchaser will purchase from CDPQ, the CDPQ Shares owned by CDPQ upon and subject to the terms of this Agreement, including the steps plan set out as part of Exhibit A (the “Steps Plan”) in consideration for a combination of cash and the issuance by Purchaser of Series D non-voting common shares in the capital of Purchaser (the “Purchaser Shares”) as set out in Section 1(4), and thereafter, (ii) sell such Purchaser Shares to Parent in exchange for a certain number of Series D non-voting common shares in the capital of Parent (“Parent Non-Voting Shares”) as set out in Section 1(5) and thereafter, (iii) exchange such Parent Non-Voting Shares for a certain number of Series D voting common shares in the capital of Parent (“Parent Voting Shares”) as set out in Section 1(6); |
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| D. | Capitalized terms used herein and not otherwise defined have the meanings ascribed thereto in the Arrangement Agreement. |
NOW THEREFORE, in consideration of the respective covenants and agreements of the parties herein contained and for other good and valuable consideration (the receipt and sufficiency of which are acknowledged by each party), the parties agree as follows:
Section 1 ACQUISITION OF CDPQ SHARES
| (1) | On the day immediately prior to the Effective Date, CDPQ shall subscribe, for cash consideration on terms and conditions set out in Exhibit B, for the number of Parent Voting Shares set out opposite CDPQ’s name in Exhibit C, without requiring CDPQ to guarantee or to be otherwise liable for any obligations or liabilities of Purchaser or Parent under the Arrangement Agreement or the Plan of Arrangement. |
| (2) | On the Effective Date and at the time set forth in the Plan of Arrangement (the “Rollover Closing”), CDPQ shall sell, transfer, assign and convey to Purchaser, and Purchaser shall purchase from CDPQ, all direct and indirect right, title and interest of CDPQ in and to the CDPQ Shares for a purchase price determined as provided in Section 1(3) of this Agreement. |
| (3) | The aggregate purchase price of the CDPQ Shares shall be the product of (A) the number of CDPQ Shares multiplied by (B) the per Share consideration in cash set forth in the definition of Consideration in the Plan of Arrangement. |
| (4) | The aggregate purchase price for the CDPQ Shares held by CDPQ shall be satisfied by Purchaser on the Effective Date and at the time specified in the Plan of Arrangement: |
| (a) | as to a percentage of the aggregate purchase price that is equal to the Rollover Percentage (as defined below), by the allotment and issuance by Purchaser of a number of Purchaser Shares to CDPQ, at a subscription price for each Purchaser Share issued on the Effective Date equal to the subscription price for all other such shares issued on such date; and |
| (b) | as to the remainder of the aggregate purchase price, by an aggregate amount in cash payable at Closing by the Depositary in the same manner as other shareholders of the Company pursuant to the Plan of Arrangement. |
In this Agreement, “Rollover Percentage” means a fraction, the numerator of which is (i) 0.12, multiplied by (ii) the aggregate subscription price paid by investors subscribing for shares of Parent at or prior to the Closing in accordance with the Steps Plan and Exhibit C (in cash, Purchaser Shares or otherwise, without duplication), and the denominator of which is (iii) the per Share consideration in cash set forth in the definition of Consideration in the Plan of Arrangement, multiplied by (iv) the number of CDPQ Shares. For illustrative purposes only, an example of the Rollover Percentage calculation is set out in Exhibit D hereto.
| (5) | Following the issuance of Purchaser Shares to CDPQ, on the Effective Date and at the time set forth in the Plan of Arrangement, CDPQ shall sell, transfer, assign and convey to Parent and Parent shall purchase from CDPQ, all right, title and interest of CDPQ in and to the Purchaser Shares received pursuant to Section 1(4)(a) in exchange for the allotment and issuance to CDPQ of 11,999,880 Parent Non-Voting Shares. |
| (6) | Following the acquisition of Parent Non-Voting Shares by CDPQ, on the Effective Date and following the steps set forth in the Plan of Arrangement, CDPQ shall sell, transfer, assign and |
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convey to Parent, and Parent shall purchase from CDPQ for cancellation, all right, title and interest of CDPQ in and to the Parent Non-Voting Shares received pursuant to Section 1(5) in exchange for the allotment and issuance to CDPQ of 11,999,880 Parent Voting Shares.
| (7) | Each party agrees to execute any and all further documents and writings, and to perform such other actions, which may be or become reasonably necessary to make effective and carry out this Agreement, customary for transactions of this type and kind, including a definitive shareholders’ agreement (the “Shareholders’ Agreement”) and for other matters referenced on Exhibit A hereto (collectively, including the Shareholders’ Agreement, the “Additional Agreements”), (a) in the case of the Shareholders’ Agreement, on terms and conditions consistent in all respects with those set forth on Exhibit A hereto, (b) in the case of the Steps Plan, consistent in all material respects with the steps set forth on Exhibit A hereto, and (c) in each case on such other terms and conditions as the parties shall negotiate in good faith consistent in all material respects with this Agreement and the other Exhibits hereto. By executing this Agreement, CDPQ hereby agrees to consummate the Rollover Closing and the other transactions contemplated by this Agreement and the Plan of Arrangement regardless of whether the Additional Agreements have been agreed and entered into at or immediately prior to the Rollover Closing. In the event the parties do not enter into the Shareholders’ Agreement or similar Additional Agreement governing all matters referenced in Exhibit A prior to the Rollover Closing, it is agreed to and understood by the parties hereto that the terms and conditions in Exhibit A shall govern and become effective and operative at the Rollover Closing until such time as the parties enter into such Additional Agreement(s), as the case may be. |
Section 2 Election under the tax act
| (1) | At the request of CDPQ, Purchaser shall make a joint income tax election with CDPQ pursuant to subsection 85(1) of the Tax Act (and any analogous provision of provincial or territorial income tax law) (a “Section 85 Election”) with respect to the transfer of CDPQ Shares to Purchaser in consideration for Purchaser Shares. Within the earlier of (a) ninety (90) days following the Effective Time and (b) February 15 of the calendar year following the calendar year in which the Effective Time occurs, Purchaser and the Company shall provide CDPQ with such information (the “Election Information”) with respect to Purchaser and the Company as is required to enable CDPQ to complete the prescribed election forms. Provided that two (2) signed copies of the prescribed election forms are delivered by CDPQ to Purchaser on or before thirty (30) days after the date on which Purchaser and the Company provide the Election Information to CDPQ, duly completed with the details of the CDPQ Shares purchased from CDPQ and the elected amount for purposes of the election in respect of such CDPQ Shares, and subject to such election forms complying with applicable Law, Purchaser shall have such forms signed by an appropriate signing officer of Purchaser and returned to CDPQ within twenty (20) days after delivery of such election forms to Purchaser for filing by CDPQ with the relevant tax authorities. CDPQ shall file each of such elections in the form and within the time required by applicable Law. Except for the foregoing obligations, Purchaser shall have no responsibility whatsoever and will not in any way be obligated to indemnify CDPQ in respect of any losses that may be suffered by reason of any inaccuracy or incompleteness of any such election forms and CDPQ shall be responsible for any Taxes (including, for greater certainty, any interest and penalties) assessed under the Tax Act or any other relevant provincial or territorial legislation arising out of or by virtue of the execution or filing of such election by CDPQ. |
| (2) | At the request of CDPQ, Parent shall make a Section 85 Election with CDPQ with respect to the transfer of Purchaser Shares to Parent in consideration for Parent Non-Voting Shares and the provisions of Section 2(1) of this Agreement shall apply with respect to the making of any such Section 85 Election mutatis mutandis. |
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Section 3 STATED CAPITAL
| (1) | In respect of the issuance of Purchaser Shares in partial consideration for the transfer of CDPQ Shares by CDPQ to Purchaser hereunder, Purchaser shall add to the stated capital account maintained for its Series D non-voting common shares, in accordance with the provisions of section 26 of the Canada Business Corporations Act, an amount equal to either (i) where a Section 85 Election is timely filed pursuant to Section 2(1) hereof, the elected amount for purposes of such election less the amount of cash described in Section 1(4)(b), and (ii) where a Section 85 Election is not timely filed pursuant to Section 2(1) hereof, the fair market value of the CDPQ Shares immediately prior to the transfer of such shares to Purchaser pursuant to Section 1(2) of this Agreement less the amount of cash described in Section 1(4)(b). |
| (2) | In respect of the issuance of Parent Non-Voting Shares in consideration for the transfer of Purchaser Shares by CDPQ to Parent hereunder, Parent shall add to the stated capital account maintained for its Series D non-voting common shares, in accordance with the provisions of section 24 of the Business Corporations Act (Ontario), an amount equal to either (i) where a Section 85 Election is timely filed pursuant to Section 2(2) hereof, the elected amount for purposes of such election, and (ii) where a Section 85 election is not timely filed pursuant to Section 2(2) hereof, the fair market value of the Purchaser Shares immediately prior to the transfer of such shares to Parent pursuant to Section 1(5) of this Agreement. |
| (3) | In respect of the issuance of Parent Voting Shares in consideration for the transfer of Parent Non-Voting Shares by CDPQ to Parent hereunder for cancellation, Parent shall add to the stated capital account maintained for its Series D voting common shares, in accordance with the provisions of section 24 of the Business Corporations Act (Ontario), an amount equal to the fair market value of the Parent Non-Voting Shares immediately prior to the transfer of such shares to Parent pursuant to Section 1(6) of this Agreement. Parent and CDPQ acknowledge that the amount added to the “paid-up capital” of the Series D voting common shares of Parent for purposes of the Tax Act in respect of the issuance of Parent Voting Shares to the CDPQ may be less than the amount added to the stated capital. |
Section 4 REPRESENTATIONS AND WARRANTIES
| (1) | CDPQ represents and warrants to Purchaser and Parent as follows as of the date hereof and as of the Rollover Closing, and acknowledges that each of Purchaser and Parent is relying upon such representations and warranties in entering into this Agreement and the Arrangement Agreement: |
| (a) | it is duly constituted, validly existing and in good standing under An Act respecting the Caisse de dépôt et placement du Québec and it has all requisite corporate power and authority to enter into and deliver this Agreement and to perform its obligations hereunder and no other corporate proceedings on its part are necessary to authorize this Agreement; |
| (b) | this Agreement has been duly executed and delivered by CDPQ and constitutes a legal, valid and binding agreement of CDPQ enforceable against it in accordance with its terms subject only to (i) any limitation on enforcement under Laws relating to bankruptcy, winding-up, insolvency, reorganization, arrangement or other Law affecting the enforcement of creditors' rights generally, and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction and the execution and delivery of this Agreement by it, and performance of its obligations hereunder do not and will not (i) contravene, conflict with, or result in |
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a violation or breach of CDPQ’s Constating Documents, or (ii) to its knowledge, contravene, conflict with or result in a violation or breach of Law;
| (c) | other than the CDPQ Shares, CDPQ does not own of record or beneficially, or exercise control or direction over, or hold any right to acquire, any securities or any securities convertible or exchangeable into any additional securities, of the Company or any of its affiliates; |
| (d) | CDPQ (i) is the sole legal and beneficial owner of the CDPQ Shares, and (ii) is not a non-resident of Canada for purposes of the Tax Act; |
| (e) | except as contemplated in the Arrangement Agreement, under this Agreement and under the support and voting agreement dated as of the date hereof between CDPQ and Purchaser (the “Support and Voting Agreement”), CDPQ is and will be, immediately prior to the Effective Time on the Effective Date, the legal and beneficial owner of the CDPQ Shares, with good and marketable title thereto, free and clear of any and all hypothecs, mortgages, liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances and demands or rights of others of any nature or kind whatsoever; |
| (f) | no Person has any agreement or option, or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase, acquisition or transfer of any of the CDPQ Shares, or any interest therein or right thereto, except pursuant to this Agreement, the Arrangement Agreement or the Support and Voting Agreement; |
| (g) | CDPQ has the sole and exclusive right to enter into this Agreement and to sell and vote the CDPQ Shares as contemplated herein and in the Support and Voting Agreement; |
| (h) | except for the amended and restated investor rights agreement dated October 4, 2021 between the Company, Whiskey Papa Fox Inc., CDP Investissements Inc. and certain funds managed by Novacap Management Inc. party thereto, this Agreement and the Support and Voting Agreement, none of the CDPQ Shares is subject to any proxy, power of attorney, attorney-in-fact, voting trust, vote pooling or other agreement with respect to the right to vote, call meetings of shareholders or give consents or approvals of any kind; |
| (i) | no consent, approval, order or authorization of, or declaration or filing with, any Governmental Entity or other Person is required to be obtained by CDPQ in connection with the execution, delivery or performance of this Agreement (other than pursuant to the requirements of applicable Securities Laws); and |
| (j) | there are no legal Proceedings in progress or pending before any Governmental Entity or, to its knowledge, threatened against CDPQ or any judgment, decree or order against CDPQ that would materially adversely affect in any manner the ability of CDPQ to enter into this Agreement and to perform its obligations hereunder. |
| (2) | Purchaser and Parent each hereby solidarily represents and warrants to CDPQ as follows as of the date hereof and as of the Rollover Closing, and acknowledges that CDPQ is relying upon such representations and warranties in entering into this Agreement: |
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| (a) | it is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and it has all requisite corporate power and authority to enter into and deliver this Agreement and to perform its obligations hereunder and no other corporate proceedings on its part are necessary to authorize this Agreement; |
| (b) | each of Purchaser and Parent is a single purpose corporation that, except in respect of or as contemplated by the Arrangement, the Arrangement Agreement, this Agreement, the Rollover Agreements and the Steps Plan, (i) has not carried on any business; (ii) has no employees; (iii) has not held or does not hold any assets; and (iv) has no contingent or outstanding liabilities and has never entered into any transaction other than those incidental to the incorporation and organization of the Parent and Purchaser, including the subsidiaries of Parent set out in the Steps Plan, and entering into of the Arrangement Agreement and other agreements incidental to the consummation of the Arrangement and the Financing necessary to consummate the Arrangement; |
| (c) | this Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding agreement of itself enforceable against it in accordance with its terms subject only to (i) any limitation on enforcement under Laws relating to bankruptcy, winding-up, insolvency, reorganization, arrangement or other Law affecting the enforcement of creditors' rights generally, and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction; |
| (d) | the execution and delivery of this Agreement by it, and performance of its obligations hereunder do not and will not (i) contravene, conflict with, or result in a violation or breach of its Constating Documents, or (ii) assuming satisfaction of, or compliance with, the matters referred to in Paragraph (4) of Schedule D of the Arrangement Agreement, contravene, conflict with or result in a violation or breach of Law; except as would not, individually or in the aggregate, materially delay, impede or prevent its ability to consummate the Arrangement and the transactions contemplated thereby; |
| (e) | no consent, approval, order or authorization of, or declaration or filing with, any Governmental Entity or other Person is required to be obtained by it in connection with the execution, delivery or performance of this Agreement; |
| (f) | there are no legal Proceedings in progress or pending before any Governmental Entity or, to its knowledge, threatened against it or any judgment, decree or order against it that would materially adversely affect in any manner its ability to enter into this Agreement and to perform its obligations hereunder; |
| (g) | at all relevant times, each of Purchaser and Parent is a “taxable Canadian corporation”, within the meaning of the Tax Act; |
| (h) | the Purchaser Shares have been duly authorized and reserved for issuance and, when issued on the Rollover Closing in accordance with the terms hereof, will be validly issued as fully paid and non-assessable shares of Purchaser, free and clear of any and all hypothecs, mortgages, liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances and demands or rights of others of any nature or kind whatsoever other than (i) those arising under the Shareholders’ Agreement, (ii) those arising under the constating documents of Purchaser, (iii) restrictions on transfer |
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arising under applicable Securities Laws or (iv) those securing any obligations of CDPQ (to the extent CDPQ has taken any steps in that respect);
| (i) | the Parent Non-Voting Shares have been duly authorized and reserved for issuance and, when issued in accordance with the terms hereof, will be validly issued as fully paid and non-assessable shares of Parent, free and clear of any and all hypothecs, mortgages, liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances and demands or rights of others of any nature or kind whatsoever other than (i) those arising under the Shareholders’ Agreement, (ii) those arising under the constating documents of Parent, (iii) restrictions on transfer arising under applicable Securities Laws or (iv) those securing any obligations of CDPQ (to the extent CDPQ has taken any steps in that respect); |
| (j) | the Parent Voting Shares have been duly authorized and reserved for issuance and, when issued in accordance with the terms hereof, will be validly issued as fully paid and non-assessable shares of Parent, will have the attributes set out in Exhibit C and will be free and clear of any and all hypothecs, mortgages, liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances and demands or rights of others of any nature or kind whatsoever other than (i) those arising under the Shareholders’ Agreement, (ii) those arising under the constating documents of Parent, (iii) restrictions on transfer arising under applicable Securities Laws or (iv) those securing any obligations of CDPQ (to the extent CDPQ has taken any steps in that respect); |
| (k) | Parent is an indirect owner of all of the outstanding shares of Purchaser as outlined in the Steps Plan; |
| (l) | a true and complete copy of each of the Rollover Agreements to be entered into concurrently with this Agreement by Purchaser and Parent with the Other Rollover Shareholders has been remitted to CDPQ; and |
| (m) | immediately following (i) the subscription set forth in Section 1(1) and (ii) the Effective Time and after giving effect to the transactions contemplated by the Plan of Arrangement and the Rollover Agreements, the authorized share capital of Parent will consist of securities set forth in Exhibit C, of which only the securities set forth in Exhibit C will be issued and registered in the name of the holders set out therein. |
Section 5 TRANSFERABILITY
Except for the transactions described herein and in the Plan of Arrangement, CDPQ shall not directly or indirectly sell, transfer, assign, pledge, convert into Subordinate Voting Shares or otherwise dispose of (whether with or without consideration and whether voluntarily or involuntarily by operation of law) any of the CDPQ Shares or any interest therein (each, an “Impermissible Transaction”).
Any Impermissible Transaction shall be null and void ab initio, and the parties shall instruct the Company to instruct its transfer agent and other third parties not to, record or recognize any such Impermissible Transaction on the share register or other books and records of the Company.
Section 6 ARRANGEMENT AGREEMENT
The parties hereby acknowledge and agree that Purchaser may, in its sole and absolute discretion, modify or waive any term or condition of or amend or supplement the Arrangement Agreement in such manner as Purchaser considers, in its sole and absolute discretion, necessary or desirable, provided
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that any such modification, waiver, amendment or supplement shall not, without the prior consent of CDPQ, reasonably be expected to have a material adverse effect on the transactions contemplated by this Agreement or on the economic interests of CDPQ, including a decrease in the per share Consideration payable under the Arrangement or a change in the form of such Consideration, or be adverse to CDPQ in a manner disproportionate to all other Shareholders or the Other Rollover Shareholders.
Section 7 TERMINATION AND SURVIVAL
| (1) | This Agreement shall be automatically terminated and be of no further force or effect upon the valid termination of the Arrangement Agreement in accordance with its terms, except that in the case of a breach of this Agreement which occurred prior to such termination, the terms set out in Section 8 shall survive. |
| (2) | All covenants, representations, warranties and agreements contained in this Agreement shall survive the Rollover Closing and shall continue in full force and effect for the benefit of the party to whom such covenants, representations and warranties are given until the date that is two years after the date of the Rollover Closing. |
Section 8 Specific performance AND OTHER EQUITABLE REMEDIES
| (1) | The parties agree that irreparable harm would occur for which money damages would not be an adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek injunctive relief, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement, and to enforce compliance with the terms of this Agreement without any requirement for proof of damages or for the securing or posting of any bond in connection with the obtaining of any such relief. The rights set forth in this Section 8, including rights of specific performance and enforcement, subject to Section 8(2), are in addition to any other remedy to which the parties may be entitled at Law or in equity. None of the parties shall object to the granting of injunctive relief, specific performance or other equitable relief on the basis that there exists an adequate remedy at Law. |
| (2) | Each party hereby agrees not to raise any objections to the availability of the equitable remedies provided for herein and the parties further agree that (a) by seeking the remedies provided for in this Section 8, a party shall not in any respect waive its right to seek any other form of relief that may be available to a party under this Agreement (including monetary damages), and (b) neither the commencement of any Proceeding pursuant to this Section 8 nor anything set forth in this Section 8 shall restrict or limit any party’s right to pursue any other remedies under this Agreement that may be available then or thereafter. |
Section 9 GENERAL PROVISIONS
| (1) | Time is of the essence in this Agreement. The mere lapse of time in the performance of the terms of this Agreement by any party will have the effect of putting such party in default in accordance with Articles 1594 to 1600 of the Civil Code of Québec. |
| (2) | This Agreement is intended to be and shall be and operate as an immediate, irrevocable, and effective transfer and assignment of the CDPQ Shares by CDPQ to Purchaser, of the Purchaser Shares by CDPQ to Parent, and of the Parent Non-Voting Shares by CDPQ to Parent, in each case as at the time specified herein and in the Plan of Arrangement. The parties agree to do all such other acts and things as may be necessary to give effect to the |
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provisions hereof, and without limiting the generality of the foregoing, to validly and effectively transfer the CDPQ Shares from CDPQ to Purchaser as at the Rollover Closing.
| (3) | This Agreement will be governed by and interpreted and enforced in accordance with the Laws of the Province of Québec and the federal Laws of Canada applicable therein. Each party to this Agreement irrevocably attorns and submits to the exclusive jurisdiction of the Québec courts situated in the City of Montreal and waives objection to the venue of any Proceeding in such court or that such court provides an inconvenient forum. |
| (4) | Any notice, or other communication given regarding the matters contemplated by this Agreement must be in writing, sent by personal delivery, courier or email sent to and addressed: |
(i) if to Purchaser or Parent:
Neon Maple Purchaser Inc. / Neon Maple Parent Inc.
c/o Advent International, L.P.
Prudential Tower, 000 Xxxxxxxx Xxxxxx
Boston, MA 02199-8069
Attention: Xxxxxx XxXxxxx Xxxxxxxx
Email: [Redacted]
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxx LLP
000 Xxx Xxxxxx, Xxxxx 0000
Toronto, Ontario M5L 1A9
Attention: Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxxx
Email: [Redacted]
and to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx
New York, NY 10022
Attention: Xxxxxxx X. Xxxxxxx, P.C., Xxxxxxx X. Xxxxx and Xxxxxx Xxx
Email: [Redacted]
(ii) if to CDPQ:
Caisse de dépôt et placement du Québec
1000 place Xxxx-Xxxx-Xxxxxxxx
Xxxxxxx-Xxxxxxxx Building
Montreal, Québec H2Z 2B3
Attention: Xxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx
Email: [Redacted]
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with a copy to:
XxXxxxxx Xxxxxxxx LLP
0000 xx xx Xxxxxxxxxxx Xxxxxx Xxxx
Suite MZ400
Montreal, Québec H3B 0A2
Attention: Xxxxxxx Xxxxxxx and Xxxxx-Xxxxxxx Xxxxxxxxxxx
Email: [Redacted]
Any notice or other communication is deemed to be given and received (a) if sent by personal delivery or same day courier, on the date of delivery if it is a Business Day and the delivery was made prior to 5:00 p.m. (local time in place of receipt) and otherwise on the next Business Day, (b) if sent by overnight courier at or prior to the courier’s stated time for enabling next business day delivery, on the next Business Day, or (c) if sent by email, on the date such email was sent if it is a Business Day and such email was sent prior to 5:00 p.m. (local time in the place of receipt) and otherwise on the next Business Day (provided in the case of email that no “bounceback” or notice of non-delivery is received by the sender within thirty (30) minutes of the time of sending). A party may change its address for service from time to time by providing a notice in accordance with the foregoing. Any subsequent notice or other communication must be sent to the party at its changed address. Any element of a party’s address that is not specifically changed in a notice will be assumed not to be changed. Sending a copy of a notice or other communication to a party’s legal counsel as contemplated above is for information purposes only and does not constitute delivery of the notice or other communication to that party. The failure to send a copy of a notice or other communication to legal counsel does not invalidate delivery of that notice or other communication to a party.
| (5) | The provisions of this Agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, provided that no party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other parties hereto and the Company (the Company’s consent not to be unreasonably withheld, conditioned or delayed), except that Purchaser may assign its rights under this Agreement in whole or in part without the prior written consent of CDPQ to the Financing Sources as collateral security for the obligations of Purchaser or its affiliates, as the case may be, to such financiers, provided, however, that no such assignments shall relieve Purchaser or Parent of their respective obligations hereunder. |
| (6) | If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible. |
| (7) | This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by all of the parties hereto and with the prior written consent of the Company (the Company’s consent not to be unreasonably withheld, conditioned or delayed). |
| (8) | Purchaser and Parent hereby undertake not to, without the prior written consent of CDPQ (not to be unreasonably withheld, conditioned or delayed) and the Company (the Company’s consent not to be unreasonably withheld, conditioned or delayed), modify or waive any |
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material term or condition of or amend or supplement in any material respect any of the other Rollover Agreements.
| (9) | This Agreement and the Support and Voting Agreement constitute an understanding between the parties hereto with respect to the subject matter hereof and supersede any prior agreement, representation or understanding with respect thereto. |
| (10) | All references to dollars or to $ are references to U.S. dollars, unless specified otherwise. All amounts and references to cash are to be denominated and paid in U.S. dollars, unless specified otherwise. |
| (11) | The provisions of this Agreement and all ancillary and related documents thereto have been freely negotiated and the parties to this Agreement waive the application of any Law or rule of construction providing that ambiguities in any agreement or other document shall be construed against the party drafting such agreement or other document. |
| (12) | The parties expressly acknowledge that it is their express wish that this Agreement and all ancillary and related documents thereto be drafted in the English language. Les parties aux présentes confirment que ce contrat a été librement négocié et les parties confirment également leur volonté expresse que la présente entente et tous les documents qui y sont accessoires soient rédigés en anglais. |
| (13) | Except as required by applicable Laws or regulations or by any Governmental Entity or in accordance with the requirements of any stock exchange, no party shall make any public announcement or statement with respect to this Agreement without the approval of the other party, which shall not be unreasonably conditioned, withheld or delayed. Moreover, the parties agree to consult with each other prior to issuing each public announcement or statement with respect to this Agreement or that refers to CDPQ in connection with the Arrangement and to provide each other with a reasonable opportunity to review and comment on any draft of such public announcement or statement and to reasonably consider any such comments, subject to the overriding obligations of applicable Laws. Subject to the foregoing, each party hereby consents to the disclosure of the substance of this Agreement in any press release, documents filed with the Court in connection with the Arrangement or any filing pursuant to applicable Securities Laws, including the Circular and the Schedule 13E-3. |
| (14) | If at any time after Closing, Purchaser, Parent or CDPQ determines, or becomes aware that an “advisor” (as is defined for purposes of section 237.3 or section 237.4 of the Tax Act) or any other person has determined, that any transaction forming part of the same series of transactions as those contemplated by this Agreement is subject to the reporting requirements under section 237.3 or the notification requirements under section 237.4 of the Tax Act, including as a result of any future amendments or proposed amendments to such provisions, and any provincial equivalents (in this Section 11(14), the "Disclosure Requirements"), Purchaser, Parent or CDPQ, as the case may be, shall promptly inform the other Party of its intent, or any other person’s intent, to comply with the Disclosure Requirements and the Parties will cooperate with respect to determining the applicability of such requirements. In the event that, following such cooperation, it is ultimately determined that any Party is required to file any applicable information return and/or disclosure in accordance with the Disclosure Requirements (in this Section 11(14), in each case, a “Mandatory Disclosure”), each Party required to file a Mandatory Disclosure (in this Section 11(14), a “Disclosing Party”) shall submit to the other Party a draft of such Mandatory Disclosure at least 30 days before the date on which such Mandatory Disclosure is required by Law to be filed, and such other Party shall have the right to make reasonable comments or changes on such draft by communicating such comments or changes in writing to the Disclosing Party at least 15 days before the date |
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on which such Mandatory Disclosure is required by Law to be filed. The Disclosing Party shall consider in good faith any such comments or changes proposed by the other Party and shall incorporate such comments or changes which the Disclosing Party determines are reasonable and in accordance with Law. This provision shall also apply, mutatis mutandis, if any Party intends, or becomes aware of any person’s intention, to file, in relation to any transaction forming part of the same series of transactions as those contemplated by this Agreement, any disclosure on a voluntary basis, including pursuant to the proposed subsection 237.3(12.1) of the Tax Act and any provincial equivalent.
| (15) | Nothing contained in this Agreement shall be deemed to vest in Purchaser any direct or indirect ownership or incidence of ownership of or with respect to the CDPQ Shares prior to the Rollover Closing. All rights and all ownership and economic benefits of and relating to the CDPQ Shares shall remain vested in and belong to CDPQ and nothing herein shall, or shall be construed to, grant the Parent or Purchaser any power, sole or shared, to direct or control the voting or, subject to Section 5, the disposition of any such CDPQ Shares. |
| (16) | Each party will pay for its own fees, costs and expenses (including the fees, costs and expenses of legal counsel, accountants and other advisors) incurred by such party in connection with this Agreement. |
| (17) | In the event of any conflict between the terms of this Agreement and the Arrangement Agreement, the terms of the Arrangement Agreement will prevail and the parties hereto will forthwith cause any necessary alternations to be made to this Agreement so as to resolve the conflict. |
| (18) | This Agreement may be executed in any number of counterparts (including counterparts executed and delivered by electronic means) and all such counterparts taken together shall be deemed to constitute one and the same instrument. |
[Signature page follows.]
Note that all signatures attached hereto have been signed in the French language version of the agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first mentioned above.
| CAISSE DE DÉPÔT ET PLACEMENT DU QUÉBEC | ||
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: |
Vice-président, Grande entreprises privées | |
| By: | /s/ Xxxxxxxxx Xxxxxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxxxxx | |
|
Title: |
Directrice principale, Québec | |
| NEON MAPLE PURCHASER INC. | ||
| By: | /s/ Xxx Xxxxxx | |
|
Xxx Xxxxxx President | ||
| NEON MAPLE PARENT INC. | ||
| By: | /s/ Xxx Xxxxxx | |
|
Xxx Xxxxxx President
| ||
EXHIBIT A
Governance Term Sheet and Steps Plan
[Omitted.]
EXHIBIT B
Form of Subscription for Parent Voting Shares
[Omitted.]
EXHIBIT C
Parent Capitalization
[Omitted.]
EXHIBIT D
Rollover Percentage Illustrative Example
[Omitted.]
