Exhibit 10.11 Acquisition Agreement among Forest Oil
Corporation, ATCOR Resources Ltd., ATCO
Ltd., Canadian Utilities Limited and
CanUtilities Holdings Ltd. dated
December 12, 1995.
ACQUISITION AGREEMENT
BETWEEN:
FOREST OIL CORPORATION
- and -
ATCOR RESOURCES LTD.
- and -
ATCO LTD.
- and -
CANADIAN UTILITIES LIMITED
- and -
CANUTILITIES HOLDINGS LTD
DATED DECEMBER 12, 1995
TABLE OF CONTENTS
PAGE
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ARTICLE 1 INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 ARTICLE REFERENCES. . . . . . . . . . . . . . . . . . . . . . . 7
1.3 INTERPRETATION. . . . . . . . . . . . . . . . . . . . . . . . . 7
1.4 GOVERNING LAW AND JURISDICTION. . . . . . . . . . . . . . . . . 8
1.5 INVALIDITY, ETC.. . . . . . . . . . . . . . . . . . . . . . . . 8
1.6 DATE FOR ANY ACTION . . . . . . . . . . . . . . . . . . . . . . 8
1.7 CURRENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.8 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . 8
1.9 SCHEDULES . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 2 THE ACQUISITION . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1 ACQUISITION . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 ANCILLARY TRANSACTIONS. . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 3 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 9
3.1 REPRESENTATIONS AND WARRANTIES OF ATCOR . . . . . . . . . . . . 9
(a) CORPORATE EXISTENCE AND POWER . . . . . . . . . . . . . .10
(b) CORPORATE AUTHORITY . . . . . . . . . . . . . . . . . . .10
(c) AUTHORIZATION; CONTRAVENTION . . . . . . . . . . . . . . .10
(d) APPROVALS . . . . . . . . . . . . . . . . . . . . . . . .10
(e) BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . .11
(f) REPORTS . . . . . . . . . . . . . . . . . . . . . . . . .11
(g) NO MATERIAL ADVERSE CHANGE . . . . . . . . . . . . . . . .12
(h) LITIGATION . . . . . . . . . . . . . . . . . . . . . . . .12
(i) BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . .12
(j) MISSTATEMENTS . . . . . . . . . . . . . . . . . . . . . .13
(k) RECOMMENDATION . . . . . . . . . . . . . . . . . . . . . .13
(l) NO MERGER AGREEMENTS . . . . . . . . . . . . . . . . . . .13
(m) ISSUED CAPITAL . . . . . . . . . . . . . . . . . . . . . .13
(n) OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . .13
(o) U.S. CONTACTS . . . . . . . . . . . . . . . . . . . . . .13
(p) CONTINUING REPRESENTATIONS AND WARRANTIES . . . . . . . .14
3.2 REPRESENTATIONS AND WARRANTIES OF FOREST. . . . . . . . . . . .14
(a) CORPORATE EXISTENCE AND POWER . . . . . . . . . . . . . .14
(b) CORPORATE AUTHORITY . . . . . . . . . . . . . . . . . . .14
(c) AUTHORIZATION; CONTRAVENTION . . . . . . . . . . . . . . .14
(d) APPROVALS . . . . . . . . . . . . . . . . . . . . . . . .15
(e) BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . .15
(f) REPORTS . . . . . . . . . . . . . . . . . . . . . . . . .15
(g) CONTINUING REPRESENTATIONS AND WARRANTIES . . . . . . . .16
(h) NO MATERIAL ADVERSE CHANGE . . . . . . . . . . . . . . . .16
(i) NO MERGER AGREEMENTS . . . . . . . . . . . . . . . . . . .16
(j) EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . .16
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3.3 REPRESENTATIONS AND WARRANTIES OF PARENT 1. . . . . . . . . . .17
3.4 REPRESENTATIONS AND WARRANTIES OF PARENT 2. . . . . . . . . . .18
3.5 REPRESENTATIONS AND WARRANTIES OF PARENT 3. . . . . . . . . . .19
ARTICLE 4 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . .21
4.1 COVENANTS OF ATCOR AND THE PRINCIPAL SHAREHOLDERS . . . . . . .21
4.2 COVENANTS OF FOREST . . . . . . . . . . . . . . . . . . . . . .26
4.3 MUTUAL COVENANTS OF ATCOR AND FOREST. . . . . . . . . . . . . .29
ARTICLE 5 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . .29
5.1 MUTUAL CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . .29
5.2 CONDITIONS TO OBLIGATIONS OF ATCOR AND
THE PRINCIPAL SHAREHOLDERS . . . . . . . . . . . . . . . . . .31
5.3 CONDITIONS TO OBLIGATION OF FOREST. . . . . . . . . . . . . . .32
5.4 MATERIALITY THRESHOLD . . . . . . . . . . . . . . . . . . . . .33
5.5 NOTICE OF NON-COMPLIANCE. . . . . . . . . . . . . . . . . . . .34
ARTICLE 6 OTHER COVENANTS . . . . . . . . . . . . . . . . . . . . . . . .34
6.1 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . .34
6.2 COVENANTS OF PRINCIPAL SHAREHOLDERS . . . . . . . . . . . . . .38
6.3 SALE OF PRINCIPAL SHAREHOLDERS' ATCOR SHARES. . . . . . . . . .39
6.4 PUBLIC OFFERING . . . . . . . . . . . . . . . . . . . . . . . .40
6.5 NON-COMPETITION . . . . . . . . . . . . . . . . . . . . . . . .40
6.6 EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . .41
6.7 NAME. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
ARTICLE 7 AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . .42
7.1 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .42
7.2 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . .42
7.3 EFFECT OF TERMINATION . . . . . . . . . . . . . . . . . . . . .43
ARTICLE 8 GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
8.1 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
8.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. . . . . . . . . . .44
8.3 BINDING EFFECT AND ASSIGNMENT . . . . . . . . . . . . . . . . .44
8.4 PUBLIC DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . .45
8.5 EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . .45
8.6 BEST INTERESTS . . . . . . . . . . . . . . . . . . . . . . . .45
8.7 TIME OF ESSENCE . . . . . . . . . . . . . . . . . . . . . . . .45
8.8 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . .45
8.9 FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . .46
ACQUISITION AGREEMENT
THIS AGREEMENT made as of the 12th day of December, 1995.
BETWEEN:
FOREST OIL CORPORATION, a corporation incorporated under the
laws of New York ("Forest")
- and -
ATCOR RESOURCES LTD., a corporation incorporated under the
laws of Canada ("ATCOR")
- and -
ATCO LTD., a corporation incorporated under the laws of
Alberta ("Parent 1")
- and -
CANADIAN UTILITIES LIMITED, a corporation incorporated under
the laws of Canada ("Parent 2")
- and -
CANUTILITIES HOLDINGS LTD., a corporation incorporated under
the laws of Alberta ("Parent 3")
WHEREAS ATCOR intends to amalgamate with a wholly-owned subsidiary
("Newco") of Parent 1 under Section 182 of the CANADA BUSINESS CORPORATIONS ACT
on the terms and conditions of the Amalgamation Agreement annexed hereto as
Schedule A;
AND WHEREAS immediately upon the Amalgamation becoming effective,
Parent 1 will sell its common shares of Amalco to an indirect wholly-owned
Subsidiary of Forest, which will subscribe for treasury shares of Amalco, and
purchase all outstanding shares of Amalco tendered to it, and Amalco will redeem
the remaining shares other than the shares held by the Subsidiary;
AND WHEREAS the parties hereto have entered into this Agreement to
provide for the matters referred to in the foregoing recitals and for other
matters relating to such transaction;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
premises and the respective covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless there is something in the subject matter or
context inconsistent therewith, the following terms shall have the following
meanings:
"ACT" means the CANADA BUSINESS CORPORATIONS ACT, as amended;
"ACTION" against a person means an action, suit, investigation, complaint
or other proceeding pending against or affecting the person or its
property, whether civil or criminal, in law or equity or before any
arbitrator or Governmental Body.
"ACQUISITION" means the acquisition by Forest 1 of all shares of Amalco
(newly issued and previously outstanding) as described in Section 2.1(b),
(c) and (d);
"AFFILIATE" has the meaning ascribed thereto in the Act;
"AMALCO" means the corporation resulting from the Amalgamation;
"AMALGAMATION" means the amalgamation of ATCOR and Newco under the
provisions of the Act on the terms and conditions set forth in the
Amalgamation Agreement;
"AMALGAMATION AGREEMENT" means the agreement attached hereto as Schedule A;
"ANCILLARY DOCUMENTS" means the agreements implementing the Ancillary
Transactions;
"ANCILLARY TRANSACTIONS" means the Sale Transactions and the
Reorganization;
"APPROVAL" means an authorization, consent, approval or waiver of,
clearance by, notice to or registration or filing with, or any other
similar action by or with respect to a Governmental Body or any other
person and the expiration or termination of all prescribed waiting, review
or appeal periods with respect to any of the foregoing;
"ASSESSMENT" has the meaning provided in section 4.1(i);
"ASSOCIATE" has the meaning ascribed thereto in the Act;
"ATCOR ASSETS" means all of the properties and assets of ATCOR and its
Subsidiaries on a consolidated basis;
"ATCOR FINANCIAL STATEMENTS" means the audited consolidated financial
statements of ATCOR for the year ended December 31, 1994 and the unaudited
consolidated financial statements of ATCOR for the nine month period ended
September 30, 1995;
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"ATCOR INFORMATION CIRCULAR" means the information circular of ATCOR to be
sent to shareholders of ATCOR in connection with the ATCOR Shareholders'
Meeting;
"ATCOR LTD." means the company of that name which is a Subsidiary of ATCOR;
"ATCOR SHAREHOLDERS MEETING" means the special meeting of shareholders of
ATCOR (including any adjournment thereof) to be held to consider and, if
thought fit, to approve the Amalgamation;
"ATCOR SHARES" means Class A Shares and Class B Shares as constituted on
the date hereof and includes all shares of Amalco issued pursuant to the
Amalgamation;
"BUSINESS DAY" means a day other than a Saturday, Sunday or a day when
banks in Calgary, Alberta or New York, New York generally are not open for
business;
"CLASS A SHARES" means the Class A Non-voting Shares of ATCOR;
"CLASS B SHARES" means the Class B Common Shares of ATCOR;
"CLOSING" means the completion of the Acquisition;
"CLOSING DATE" means the date of completion of the Acquisition, which shall
be a date selected by Forest which shall be not more than two days
following completion of the Offering;
"COURT" means the Court of Queen's Bench of Alberta;
"DISSENTING SHAREHOLDERS" means holders of ATCOR Shares who exercise, and
do not prior to the Closing Date withdraw or otherwise relinquish, the
right of dissent available to such holders in respect of the special
resolution to be placed before the shareholders of ATCOR at the ATCOR
Shareholders Meeting;
"DUE DILIGENCE RESPONSE" means the letter of even date herewith delivered
by ATCOR to Forest responding to various due diligence inquiries;
"ENCUMBRANCE" includes, without limitation, any mortgage, pledge,
assignment, charge (fixed or floating), lien, security interest, claim or
trust, or any royalty, carried, working, participation, net profits or
other third party interest and any agreement, option, right or privilege
capable of becoming any of the foregoing;
"ESCROW AGENT" means The R-M Trust Company;
"ESCROW AGREEMENT" means an agreement to be entered into among ATCOR,
Parent 1, Parent 2, Parent 3, Forest and the Escrow Agent providing for the
release of funds deposited with the Escrow Agent pursuant to Sections
4.2(f) and 5.2;
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"ETHANE PLANT" means the Edmonton Ethane Extraction Plant;
"EXCHANGE ACT" means the Securities Exchange Act of 1934 of the United
States, as amended, and the related rules and regulations thereunder;
"FINANCIAL INSTRUMENT TRANSACTIONS" means any agreements involving the
purchase, sale or ownership of interest rate or currency swaps, foreign
exchange swaps or forward delivery agreements or commodity or financial
derivatives (other than a contract for purchase or sale of oil or gas at a
fixed price on which delivery is intended to be made and in respect of
which the vendor has entered into a corresponding contract for sale or
purchase of such oil or gas at a fixed price);
"FOREST 1" means a corporation incorporated or to be incorporated under the
laws of Canada which is or shall be a wholly-owned Subsidiary of Forest;
"FRONTIER LANDS" means ATCOR's oil and gas rights in Canada lands and
freehold lands in the Arctic and offshore the east coast of Canada;
"GAAP" means generally accepted accounting principles as in effect in
Canada from time to time;
"GOVERNMENTAL BODY" means any agency, bureau, commission, court,
department, official, political subdivision, tribunal or other
instrumentality of any government, whether federal, provincial, county or
local, domestic or foreign;
"INSIDER" has the meaning ascribed thereto in the SECURITIES ACT,
S.A. 1981, c. S-6.1, as amended;
"INTERCOMPANY TRANSACTIONS" means any transaction between Parent 1,
Parent 2 or their affiliates, on the one hand, and ATCOR or its
Subsidiaries, on the other hand, entered into on or prior to the Closing
Date and including, but not limited to the Sale Transactions, but excluding
the transactions described in Section 2.1;
"INDEMNIFIED PERSON" means any person entitled to be or alleging to have a
right to be indemnified pursuant to the provisions of Sections 6.1(a)
through (e);
"INDEMNIFYING PERSON" means any person from whom an Indemnified Person is
seeking indemnity pursuant to the provisions of Sections 6.1(a) through
(e);
"LIEN" means any mortgage, deed of trust, lien (statutory or otherwise),
pledge, hypothecation, charge, deposit arrangement, preference, priority,
security interest or encumbrance of any kind (including, but not limited
to, any conditional sale agreement or other title retention agreement, any
capitalized lease or financing lease having substantially the same economic
effect as the foregoing and the filing of or agreement to give any
financing
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statement under the PERSONAL PROPERTY SECURITY ACT or comparable law of
any jurisdiction to evidence any of the foregoing);
"LOSS" means any cost, damage, disbursement, expense, liability, judgment,
loss, deficiency, obligation, penalty or settlement of any kind or nature,
whether foreseeable or unforeseeable, including, but not limited to,
interest or other carrying costs, penalties, legal, accounting, expert
witness, consultant and other professional fees and expenses incurred in
the investigation, collection, prosecution and defense of claims and
amounts paid in settlement, that may be imposed on or otherwise incurred or
suffered by the specified person;
"MARKETABLE SECURITIES" means 200,000 Class I preferred shares of Trilon
Corporation;
"MARKETING BUSINESS" means the business of buying gas from third parties
for resale and marketing such gas to others (or as shrinkage gas for ATCOR
Ltd.'s interest in the Ethane Plant), and marketing gas produced by ATCOR
Ltd., and buying gas or selling gas to or for third parties as broker as
conducted by ATCOR Ltd. (or Parent 2 or its Subsidiaries, as the case may
be) on the date hereof;
"MARKETING EMPLOYEES" means the officers, employees, representatives,
agents and advisors who as at the date hereof conduct the Marketing
Business, as specified in the Due Diligence Response;
"MATERIAL CONTRACT" means (i) agreements with investment bankers, brokers,
finders, consultants and advisers engaged by ATCOR or a Subsidiary with
respect to any transactions contemplating the recapitalization of ATCOR or
the Subsidiary, the purchase or sale by ATCOR or a Subsidiary of assets not
in the ordinary course of business or the issuance and sale by ATCOR or a
Subsidiary of any securities of ATCOR or a Subsidiary, as the case may be;
(ii) agreements of arrangements for the purchase, sale, delivery,
gathering, transportation or processing of oil or gas to which ATCOR or a
Subsidiary of ATCOR is bound, other than those which are terminable by
ATCOR or its Subsidiary without penalty or payment on not more than one
month's notice; (iii) Financial Instrument Transactions; (iv) agreements
with any shareholder having beneficial ownership of 5% or more of the ATCOR
Shares of any class then issued and outstanding, or any director or officer
of ATCOR or a Subsidiary and all shareholders' agreements and voting
trusts; and (v) agreements not made in the ordinary course of business and
which are materially adverse to the business of ATCOR or a Subsidiary;
"NEWCO" means a corporation incorporated or to be incorporated under the
laws of Canada which is or shall be a wholly-owned Subsidiary of Parent 1;
"OFFER" means the offer to purchase Amalco shares pursuant to
Section 2.1(c) at a price of $4.88 per share;
"OFFERING" means the public offering of shares by Forest described in
Section 6.4;
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"PARENT 1 ATCOR SHARES", "PARENT 2 ATCOR SHARES", and PARENT 3 ATCOR
SHARES" have the meaning set out in Sections 3.3, 3.4 and 3.5 respectively;
"PRINCIPAL SHAREHOLDERS" means Parent 1, Parent 2 and Parent 3;
"PRINCIPAL SHAREHOLDERS' ATCOR SHARES" means Parent 1's ATCOR Shares,
Parent 2's ATCOR Shares, and Parent 3's ATCOR Shares;
"PROPRIETARY RIGHTS" means all computer software, seismic data, copyrights,
uncopyrighted works, trademarks, trademark rights, service marks, trade
names, trade name rights, patents, patent rights, unpatented inventions,
licenses, permits, trade secrets, know-how, inventions and intellectual
property rights and other proprietary rights together with applications and
licenses for any of the foregoing;
"RECOMMENDATION" has the meaning set out in Section 3.1(k);
"REDEMPTION AMOUNT" means the amount required to redeem all shares of
Amalco not tendered to the Offer;
REGISTRATION STATEMENT" means the registration statement filed by Forest at
the Securities and Exchange Commission in respect of the Offering;
"REGULATION" means (i) any applicable law, rule, regulation, judgment,
decree, ruling, order, award, injunction, recommendation or other official
action of any Governmental Body and (ii) any official change in the
interpretation or administration of any of the foregoing by the
Governmental Body or by any other Governmental Body or other person
responsible for the interpretation or administration of any of the
foregoing;
"REORGANIZATION" means the transfer of all the ATCOR Assets used in the
Marketing Business carried on by ATCOR Ltd. and all of such business to a
wholly-owned Subsidiary of ATCOR Ltd. (which shall hold no other assets and
carry on no other business) in consideration for shares of the Subsidiary,
all in a form satisfactory to Forest;
"SALE DOCUMENTS" means the agreements implementing the Sale Transactions in
a form satisfactory to ATCOR and Forest;
"SALE TRANSACTIONS" means the sale of the Marketable Securities and
interests in the Ethane Plant and Frontier Lands to Parent 1 and Parent 2;
"SAXON" means Saxon Petroleum, Inc.;
"SUBSIDIARY" has the meaning ascribed thereto in the Act and, except where
the context otherwise requires, means a Subsidiary of ATCOR;
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"TAXES" means all taxes, charges, fees, levies, duties, imposts,
withholdings, restrictions, fines, interest, penalties, additions to tax or
other assessments or charges, including, but not limited to, income,
excise, goods and services, property, withholding, sales, use, gross
receipts, value added and franchise taxes, license recording, documentation
and registration fees and customs duties imposed by any Governmental Body;
"TAX RETURN" means a report, return or other information required to be
filed by a person with or submitted to a Governmental Body with respect to
Taxes, including, where permitted or required, combined or consolidated
returns for any group of entities that includes the person;
"TRADE SECRETS" means all information of a confidential and proprietary
nature to ATCOR or Parent 2, respectively, pertaining to the Marketing
Business including all customer lists and proprietary computer software;
"TRANSACTION EXPENSES" means all expenses of ATCOR in connection with
negotiating, entering into and approving this Agreement, and the Ancillary
Transactions including fees and expenses of counsel, accountants, and
financial advisors, costs of valuations and fairness opinions, fees payable
to any brokers, in each case payable to parties retained by ATCOR prior to
Closing, fees and expenses of the members of the Special Committee of
ATCOR's board of directors and amounts required to be included by Section
4.1(c)(iii);
"TRANSACTION PROPOSAL" has the meaning set out in Section 4.1(a).
1.2 ARTICLE REFERENCES
The division of this Agreement into Articles, Sections, paragraphs and
other subdivisions, the insertion of headings and the provision of a table of
contents are for convenience of reference only and shall not affect the
construction or interpretation hereof.
1.3 INTERPRETATION
In this Agreement, except where otherwise specified:
(a) the terms "this Agreement", "hereof", "herein", "hereunder" and
similar expressions refer, unless otherwise specified, to this
Agreement taken as a whole and not to any particular section,
paragraph or clause;
(b) words importing the singular number or masculine gender shall include
the plural number or the feminine or neuter genders, and vice versa;
(c) all references to Articles and Schedules refer, unless otherwise
specified, to articles of and schedules to this Agreement;
-8-
(d) all references to Sections refer, unless otherwise specified, to
sections, paragraphs or clauses of this Agreement and reference to
paragraphs or clauses refer to paragraphs in the same section as the
reference or clauses in the same paragraph as the reference; and
(e) words and terms denoting inclusiveness (such as "include" or
"includes" or "including"), whether or not so stated, are not limited
by and do not imply limitation of, their context or the words or
phrases which precede or succeed them.
1.4 GOVERNING LAW AND JURISDICTION
This Agreement and, unless otherwise specified therein, all other
documents and instruments delivered in accordance with this Agreement shall be
governed by and interpreted in accordance with the laws of the Province of
Alberta. The parties irrevocably submit to the non-exclusive jurisdiction of
the courts of the Province of Alberta, without prejudice to the rights of the
parties to take proceedings in any other jurisdictions.
1.5 INVALIDITY, ETC.
Any provision hereof which is prohibited or unenforceable shall be
ineffective only to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof.
1.6 DATE FOR ANY ACTION
If any date on which any action is required to be taken hereunder by
any of the parties hereto is not a business day, such action shall be required
to be taken on the next succeeding day which is a business day.
1.7 CURRENCY
Unless otherwise stated, all references in this Agreement to sums of
money are expressed in lawful money of Canada.
1.8 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, among the
parties with respect to the subject matter hereof, except for agreements between
the parties and their agents respecting the confidentiality of information
provided in connection with the transactions contemplated herein.
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1.9 SCHEDULES
The following Schedule forms part of this Agreement:
Schedule A - Amalgamation Agreement
ARTICLE 2
THE ACQUISITION
2.1 ACQUISITION
Subject to the terms and conditions hereof, the parties shall complete
each of the following transactions on the Closing Date in the order set forth in
this Section 2.1:
(a) The Amalgamation shall be completed and made effective;
(b) Forest 1 shall purchase from Parent 1 and Parent 1 shall sell to
Forest 1, all outstanding Common Shares of Amalco for an aggregate
price of $1.00;
(c) Forest 1 shall make the Offer to acquire all of the shares of Amalco
not held by Forest 1 and shall acquire all of the shares of Amalco
tendered to the Offer;
(d) Forest 1 shall subscribe for and purchase from Amalco, and Amalco,
ATCOR and Parent 1 hereby agree that Amalco shall issue to Forest 1 a
number of Common Shares of Amalco to be designated by Forest at an
aggregate price of the Redemption Amount; and
(e) Amalco shall redeem all shares not held by Forest 1.
2.2 ANCILLARY TRANSACTIONS
Prior to the Closing Date, ATCOR shall complete the Reorganization and
execute the Sale Documents.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF ATCOR
ATCOR represents and warrants to and in favour of Forest as follows
and acknowledges that Forest is relying upon such representations and warranties
in connection with the matters contemplated by this Agreement:
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(a) CORPORATE EXISTENCE AND POWER. Each of ATCOR and its Subsidiaries is
a corporation duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, has all
necessary corporate power and authority and all material licenses,
authorizations, consents and approvals required to own, lease, license
or use its properties now owned, leased, licensed or used and to carry
on its business as now conducted and is duly qualified as a foreign
corporation under the laws of each jurisdiction in which such
qualification is required to own, lease, license or use its properties
now owned, leased, licensed and used or to carry on its business as
now conducted and in which the failure to be so qualified could
materially and adversely affect the business, properties, operations,
prospects or condition (financial or otherwise) of ATCOR and its
Subsidiaries, taken as a whole, or the ability of ATCOR or the
Subsidiary, as the case may be, to perform its obligations under this
Agreement, the Amalgamation Agreement and the Ancillary Documents.
(b) CORPORATE AUTHORITY. ATCOR has all necessary corporate power and
authority to execute, deliver and perform its obligations under this
Agreement, the Amalgamation Agreement and the Ancillary Documents.
(c) AUTHORIZATION; CONTRAVENTION. Subject to obtaining the Approvals
referred to in paragraph (d), the execution and delivery of this
Agreement, the Amalgamation Agreement and the Ancillary Documents by
ATCOR and the performance by ATCOR of its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action
and do not and will not:
(i) contravene, violate, result in a breach of or constitute a
default under, its articles of incorporation or certificate of
incorporation, as the case may be, or bylaws, any Regulation or
any decision, ruling, order or award of any arbitrator by which
ATCOR or any Subsidiary may be bound or affected, or any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which ATCOR or any Subsidiary is a
party or by which it is bound where such contravention could
reasonably be expected to prevent or materially hinder the
completion of the transactions contemplated by this Agreement or
could have a material adverse effect on ATCOR;
(ii) terminate or modify any rights, or accelerate or increase any
obligations, of ATCOR or a Subsidiary under any Material Contract
to which ATCOR or any of its Subsidiaries is a party or pursuant
to which any of its property is held, or give any person a right
to do so.
(d) APPROVALS. Except for an Approval from the Alberta Energy and Utility
Board and the approval of the ATCOR Shareholders, no Approval of any
Governmental Body or other person is required or advisable on the part
of ATCOR or any Subsidiary for the due execution delivery and
performance by ATCOR of this Agreement, the Amalgamation Agreement and
the Ancillary Documents.
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(e) BINDING EFFECT. Each of this Agreement, the Amalgamation Agreement
and the Ancillary Documents is a legally valid and binding obligation
of ATCOR enforceable against it in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally and general principles of equity.
(f) REPORTS
(i) ATCOR has heretofore delivered to Forest true and complete copies
of ATCOR's 1994 Annual Information Form, ATCOR's information
circular relating to its 1995 annual meeting of shareholders,
ATCOR's Annual Report to shareholders and ATCOR's Financial
Statements. As of their respective dates, such forms and
statements did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading and
complied in all material respects with all applicable
requirements of law. The audited financial statements and
unaudited interim financial statements of ATCOR and its
consolidated subsidiaries included or incorporated by reference
in such forms and statements were prepared in accordance with
GAAP (except (i) as otherwise indicated in such financial
statements and the notes thereto or, in the case of audited
statements, in the related report of ATCOR's independent
accountants or (ii) in the case of unaudited interim statements,
to the extent they may not include notes or may be condensed or
summary statements), and fairly present the consolidated
financial position, results of operations and changes in
financial position of ATCOR and its consolidated subsidiaries as
of the dates thereof and for the periods indicated therein
(subject, in the case of any unaudited interim financial
statements, to normal year-end audit adjustments).
(ii) ATCOR will deliver to Forest as soon as they become available
true and complete copies of any report or statement filed by it
with Canadian securities regulatory authorities subsequent to the
date hereof. As of their respective dates, such reports and
statements (excluding any information therein provided by Forest,
as to which ATCOR makes no representation) will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they are made, not misleading and will comply in all material
respects with all applicable requirements of law. The
consolidated financial statements of ATCOR to be included in such
reports and statements (excluding any information therein
provided by Forest, as to which ATCOR makes no representation)
will be prepared in accordance with GAAP (except (i) as otherwise
indicated in such financial statements and the notes thereto or,
in the case of audited statements, in the related report of
ATCOR's independent accountants or (ii)
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in the case of unaudited interim statements, to the extent
they may not include notes or may be condensed or summary
statements) and will present fairly the consolidated financial
position, results of operations and changes in financial
position of ATCOR as of the dates thereof and for the periods
indicated therein (subject, in the case of any unaudited
interim financial statements, to normal year-end audit
adjustments).
(g) NO MATERIAL ADVERSE CHANGE. Since December 31, 1994, there has been
no material adverse change in the business, properties, operations,
prospects or condition (financial or otherwise) of ATCOR and its
Subsidiaries, taken as a whole, except as disclosed by ATCOR in the
public filing documents which were provided to Forest pursuant to
Section 3.1(f).
(h) LITIGATION. Except as previously disclosed to Forest in writing,
which writing makes reference to this Agreement, there is no Action
commenced or, to the knowledge of ATCOR, threatened against ATCOR or
any of its Subsidiaries or that might affect the property of ATCOR or
any of its Subsidiaries that (i) individually or in the aggregate, if
determined adversely to any of them, could result in a liability to
any of them in an amount that exceeds $200,000 in the aggregate, or
(ii) involves the Amalgamation, the Acquisition or the Ancillary
Transactions nor, to the knowledge of ATCOR are there any grounds on
which any such Action could be commenced with any reasonable
likelihood of success.
(i) BOOKS AND RECORDS.
(i) The records and books of account of each of ATCOR and its
Subsidiaries are correct and complete in all material
respects, have been maintained in accordance with good
business practices and are reflected accurately in the
financial statements referred to in Section 3.1(f). Each of
ATCOR and its Subsidiaries has accounting controls sufficient
to ensure that its transactions are executed in accordance
with management's general or specific authorization and
recorded in conformity with GAAP so as to maintain
accountability for assets.
(ii) The minute books of each of ATCOR and its Subsidiaries contain
accurate records of all meetings and accurately reflect all
corporate action of the shareholders and the board of directors
(including committees) of ATCOR or the Subsidiary, as the case
may be.
(iii) The books and ledgers of each of ATCOR and its Subsidiaries
correctly record all transfer and issuances of all shares of
ATCOR or the Subsidiary, as the case may be, and (in the
case of the Subsidiaries) contain all cancelled and unused
stock certificates of the Subsidiary.
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(j) MISSTATEMENTS. Except to the extent revised or superseded by a
subsequent certificate, schedule or report furnished to Forest, no
certificate, schedule or report (including the Due Diligence Response)
furnished by ATCOR to Forest with respect to ATCOR or a Subsidiary of
ATCOR in connection with the negotiation of this Agreement or any of
the Ancillary Documents or the satisfaction of any condition under
this Agreement or any of the Sale Documents contained as of the date
thereof any untrue statement of a material fact or omitted to state a
material fact necessary to make the statement contained therein, in
the light of the circumstances under which it was made, not
misleading.
(k) RECOMMENDATION. The Board of Directors of ATCOR, at a meeting duly
called and held, has (i) duly determined that the Amalgamation, the
Acquisition and the Ancillary Transactions are in the best interests
of ATCOR and its shareholders, and (ii) resolved to recommend that
holders of ATCOR Shares approve the Amalgamation and the Amalgamation
Agreement, (collectively, the "Recommendation").
(l) NO MERGER AGREEMENTS. Except for this Agreement, none of ATCOR and
its Subsidiaries has entered into any agreement with any person which
has not been terminated as of the date of this Agreement and under
which there remains any liability or obligation of any of ATCOR and
its Subsidiaries with respect to a merger or consolidation with any of
ATCOR and its Subsidiaries, an acquisition of any equity securities of
any of ATCOR and its Subsidiaries or any other acquisition of a
substantial amount of the assets of any of ATCOR and its Subsidiaries.
(m) ISSUED CAPITAL. The authorized capital of ATCOR consists of:
(i) an unlimited number of Class A Shares, of which 27,272,536 (and
no more) are issued and outstanding as of the date hereof;
(ii) an unlimited number of Class B Shares, of which 10,835,416 (and
no more) are issued and outstanding as of the date hereof; and
(iii) an unlimited number of Series Preferred Shares issuable in
series, of which no shares are issued and outstanding as of
the date hereof.
provided that the respective number of Class A Shares and Class B
Shares may vary by reason of the conversion of shares of one class
into the other class.
(n) OPTIONS. No person has any agreement, warrant, right or option, or
any privilege capable of becoming an agreement, right or option, for
the purchase or issuance of any unissued shares of ATCOR or any
material subsidiary of ATCOR.
(o) U.S. CONTACTS. ATCOR, its Subsidiaries and any entities controlled by
them did not have either assets having an aggregate book value of
$15 million (U.S.) in the United
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States or an aggregate of $25 million (U.S.) in revenues from sales
in or into the United States in any of their most recent fiscal years,
nor is it expected that such entities will have such assets or sales
in their current fiscal years.
(p) CONTINUING REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made with respect to ATCOR or a
Subsidiary of ATCOR in this Agreement as of any date other than the
Closing Date shall be true and correct in all material respects on and
as of the Closing Date except as and except that ATCOR will prepare
and deliver to Forest such updates or other revisions of the written
disclosures referred to in this Section 3.1 or the Due Diligence
Response as having been delivered by ATCOR as shall be necessary in
order to make each of such written disclosures correct and complete in
all material respects on and as of the Closing Date. Subject to
Section 5.4, the requirement to prepare and deliver updates or other
revisions of the written disclosures, and the receipt by Forest of
information on or before the Closing Date, shall not limit the right
of Forest to require as a condition precedent to the performance of
its obligations under this Agreement on the Closing Date the accuracy
in all material respects of the representations and warranties and the
performance in all material respects of the covenants of ATCOR
(without regard to such updates or other revisions).
3.2 REPRESENTATIONS AND WARRANTIES OF FOREST
Forest represents and warrants to and in favour of ATCOR and the
Principal Shareholders as follows and acknowledges that ATCOR and the Principal
Shareholders are relying upon such representations and warranties in connection
with the matters contemplated by this Agreement:
(a) CORPORATE EXISTENCE AND POWER. Forest is a corporation duly
incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation.
(b) CORPORATE AUTHORITY. Forest has all necessary corporate power and
authority to execute, deliver and perform its obligations under this
Agreement.
(c) AUTHORIZATION; CONTRAVENTION. The execution and delivery of this
Agreement by Forest and the performance by Forest of its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not contravene, violate, result in a breach of or
constitute a default under, its articles of incorporation or
certificate of incorporation, as the case may be, or bylaws, any
Regulation or any decision, ruling, order or award of any arbitrator
by which Forest or any Subsidiary may be bound or affected or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which Forest or any Subsidiary is a party or by which
it is bound where such contravention could reasonably be expected to
prevent or materially hinder the completion of the transactions
contemplated by this Agreement or could have a material adverse effect
on Forest.
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(d) APPROVALS: Other than (i) Approval pursuant to the INVESTMENT CANADA
ACT, (ii) filing of a pre-notification pursuant to the COMPETITION ACT
(Canada), and (iii) Approval from the Alberta Energy and Utilities
Board; no Approval of any Governmental Body or other person is
required or advisable for the due execution, delivery and performance
by Forest of this Agreement;
(e) BINDING EFFECT. This Agreement is a legally valid and binding
obligation of Forest enforceable against it in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and general principles of
equity.
(f) REPORTS:
(i) Forest has heretofore delivered to ATCOR and the Principal
Shareholders true and complete copies of Forest's Form 10-K
relating to the year ended December 31, 1994, Forest's Form 10-Q
for the nine months ended September 30, 1995, Forest's Proxy
Statement relating to its 1995 annual meeting of shareholders and
Forest's Annual Report to shareholders. As of their respective
dates, such forms and statements, (including all exhibits and
schedules thereto and documents incorporated by reference
therein) did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and
complied in all material respects with all applicable
requirements of law. The audited financial statements and
unaudited interim financial statements of Forest and its
consolidated subsidiaries included or incorporated by reference
in such forms and statements, were prepared in accordance with
generally accepted accounting principles in the United States
(except (i) as otherwise indicated in such financial statements
and the notes thereto or, in the case of audited statements, in
the related report of Forest's independent accountants or (ii) in
the case of unaudited interim statements, to the extent they may
not include notes or may be condensed or summary statements), and
fairly present the consolidated financial position, results of
operations and changes in financial position of Forest and its
consolidated subsidiaries as of the dates thereof and for the
periods indicated therein (subject, in the case of any unaudited
interim financial statements, to normal year-end audit
adjustments).
(ii) Forest will deliver to ATCOR as soon as they become available
true and complete copies of any report or statement filed by it
in accordance with applicable Regulations and policies of
securities regulatory authorities subsequent to the date hereof.
As of their respective dates, such reports and statements
(excluding any information therein provided by or with respect to
ATCOR, as to which Forest makes no representation) will not
contain any untrue statement of a material fact or omit to state
a material fact required to
-16-
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not
misleading and will comply in all material respects with all
applicable requirements of law. The consolidated financial
statements of Forest to be included in such reports and
statements (excluding any information therein provided by or
with respect to ATCOR, as to which Forest makes no
representation) will be prepared in accordance with generally
accepted accounting principles in the United States (except
(i) as otherwise indicated in such financial statements and
the notes thereto or, in the case of audited statements, in
the related report of Forest's independent accountants or (ii)
in the case of unaudited interim statements, to the extent
they may not include notes or may be condensed or summary
statements) and will present fairly the consolidated financial
position, results of operations and changes in financial
position of Forest as of the dates thereof and for the periods
indicated therein (subject, in the case of any unaudited
interim financial statements, to normal year-end audit
adjustments).
(g) CONTINUING REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made with respect to Forest or a
Subsidiary of Forest in this Agreement as of any date other than the
Closing Date shall be true and correct in all material respects on and
as of the Closing Date.
(h) NO MATERIAL ADVERSE CHANGE. Since December 31, 1994, there has been
no material adverse change in the business, properties, operations,
prospects or condition (financial or otherwise) of Forest and its
Subsidiaries, taken as a whole, except as disclosed by Forest in the
public filing documents which were provided to ATCOR pursuant to
Section 3.2(f).
(i) NO MERGER AGREEMENTS. Except for this Agreement, and except as
disclosed in the public filing documents provided to ATCOR pursuant to
Section 3.2(f), none of Forest and its Subsidiaries has entered into
any agreement with any person which has not been terminated as of the
date of this Agreement and under which there remains any liability or
obligation of any of Forest and its Subsidiaries with respect to a
merger or consolidation with any of Forest and its Subsidiaries, an
acquisition of any equity securities of any of Forest and its
Subsidiaries or any other acquisition of a substantial amount of the
assets of any of Forest and its Subsidiaries.
(j) EMPLOYEES. Forest intends to cause ATCOR to continue the employment
of ATCOR's current employees following the Closing upon substantially
the same terms and conditions of employment as presently exist,
subject to Forest's personnel policies.
-17-
3.3 REPRESENTATIONS AND WARRANTIES OF PARENT 1
Parent 1 represents and warrants to and in favour of Forest as
follows, and acknowledges that Forest is relying upon such representations and
warranties in connection with the matters contemplated by this Agreement:
(a) Parent 1 is a corporation duly incorporated validly existing and in
good standing under the laws of Alberta and has the corporate power
and authority to own and lease its property and assets and to carry on
its current activities;
(b) Parent 1 has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(c) the execution and delivery of this Agreement by Parent 1 and the
performance by Parent 1 of its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not
contravene, violate or result in a breach of or constitute a default
under:
(i) the Articles of Incorporation or by-laws of Parent 1;
(ii) any applicable laws, the contravention of which could reasonably
be expected to prevent or materially hinder the completion of
the Amalgamation; or
(iii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Parent 1 is a party
or by which it is bound where such contravention could
reasonably be expected to prevent or materially hinder the
completion of the Amalgamation, the Acquisition or the
Ancillary Transactions or could have any material adverse
effect on Forest or ATCOR;
(d) this Agreement is a legally valid and binding obligation of Parent 1
enforceable against it in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors rights generally and
general principles of equity;
(e) no Approval of any Governmental Body or other person is required or
advisable on the part of Parent 1 or any Subsidiary of Parent 1 for
the due execution, delivery and performance by Parent 1 of this
Agreement and the Ancillary Documents to which it is a party;
(f) Parent 1 is the registered and beneficial owner of the following
securities of ATCOR;
(i) Nil Class A Shares;
(ii) 2,500 Class B Shares;
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(The shares referred to in (i) to (ii) inclusive being collectively
"PARENT 1'S ATCOR SHARES");
(g) Parent 1 has good and marketable title to Parent 1's ATCOR Shares,
free and clear of any and all mortgages, liens, charges, restrictions,
security interests, adverse claims, pledges, encumbrances and demands
or rights of others of any nature or kind whatsoever including,
without limitation, any agreement, right or option, or any privilege
capable of becoming an agreement, right or option, for the purchase or
transfer of any of Parent 1's ATCOR Shares or any interest therein or
right thereto, except pursuant to the terms of this Agreement; and
(h) Parent 1's ATCOR Shares, Parent 2's ATCOR Shares and Parent 3's ATCOR
Shares comprise all of the securities of ATCOR of any kind or nature
which Parent 1 owns, directly or indirectly, or over which Parent 1
exercises voting or other control.
3.4 REPRESENTATIONS AND WARRANTIES OF PARENT 2
Parent 2 represents and warrants to and in favour of Forest as
follows, and acknowledges that Forest is relying upon such representations and
warranties in connection with the matters contemplated by this Agreement:
(a) Parent 2 is a corporation duly incorporated, validly existing and in
good standing under the laws of Canada and has the corporate power and
authority to own and lease its property and assets and to carry on its
current activities;
(b) Parent 2 has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(c) the execution and delivery of this Agreement by Parent 2 and the
performance by Parent 2 of its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not
contravene, violate, result in a breach of or constitute a default
under:
(i) the Articles of Incorporation or by-laws of Parent 2;
(ii) any applicable laws, the contravention of which could reasonably
be expected to prevent or materially hinder the completion of
the Amalgamation; or
(iii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Parent 2 is a party
or by which it is bound where such contravention could
reasonably be expected to prevent or materially hinder the
completion of the Amalgamation, the Acquisition or the
Ancillary Transactions or could have any material adverse
effect on Forest or ATCOR;
-19-
(d) this Agreement is a legally valid and binding obligation of Parent 2
enforceable against it in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization moratoriums or
similar laws affecting creditors rights generally and general
principles of equity;
(e) no Approval of any Governmental Body or other person is required or
advisable on the part of Parent 2 for the due execution, delivery and
performance by Parent 2 of this Agreement, and the Ancillary Documents
to which it is a party;
(f) Parent 2 is the registered and beneficial owner of the following
securities of ATCOR:
(i) 6,465,083 Class A Shares;
(ii) 5,417,208 Class B Shares;
(collectively "PARENT 2'S ATCOR SHARES");
(g) Parent 2 has good and marketable title to Parent 2's ATCOR Shares,
free and clear of any and all mortgages, liens, charges, restrictions,
security interests, adverse claims, pledges, encumbrances and demands
or rights of others of any nature or kind whatsoever including,
without limitation, any agreement, right or option, or any privilege
capable of becoming an agreement, right or option, for the purchase or
transfer of any of Parent 2's ATCOR Shares or any interest therein or
right thereto, except pursuant to the terms of this Agreement; and
(h) Parent 2's ATCOR Shares comprise all of the securities of ATCOR of any
kind or nature which Parent 2 owns, directly or indirectly, or over
which Parent 2 exercises voting or other control.
3.5 REPRESENTATIONS AND WARRANTIES OF PARENT 3
Parent 3 represents and warrants to and in favour of Forest as
follows, and acknowledges that Forest is relying upon such representations and
warranties in connection with the matters contemplated by this Agreement:
(a) Parent 3 is a corporation duly incorporated, validly existing and in
good standing under the laws of Alberta and has the corporate power
and authority to own and lease its property and assets and to carry on
its current activities;
(b) Parent 3 has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(c) the execution and delivery of this Agreement by Parent 3 and the
performance by Parent 3 of its obligations hereunder have been duly
authorized by all necessary
-20-
corporate action and do not and will not contravene, violate, result
in a breach of or constitute a default under:
(i) the Articles of Incorporation or by-laws of Parent 3;
(ii) any applicable laws, the contravention of which could reasonably
be expected to prevent or materially hinder the completion of
the Amalgamation; or
(iii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Parent 3 is a party
or by which it is bound where such contravention could
reasonably be expected to prevent or materially hinder the
completion of the Amalgamation, the Acquisition or the
Ancillary Transactions or could have any material adverse
effect on Forest or ATCOR;
(d) this Agreement is a legally valid and binding obligation of Parent 3
enforceable against it in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization moratoriums or
similar laws affecting creditors rights generally and general
principles of equity;
(e) no Approval of any Governmental Body or other person is required or
advisable on the part of Parent 3 for the due execution, delivery and
performance by Parent 3 of this Agreement, and the Ancillary Documents
to which it is a party;
(f) Parent 3 is the registered and beneficial owner of the following
securities of ATCOR:
(i) 1,544,638 Class A Shares;
(ii) 3,894,638 Class B Shares;
(collectively "PARENT 3'S ATCOR SHARES");
(g) Parent 3 has good and marketable title to Parent 3's ATCOR Shares,
free and clear of any and all mortgages, liens, charges, restrictions,
security interests, adverse claims, pledges, encumbrances and demands
or rights of others of any nature or kind whatsoever including,
without limitation, any agreement, right or option, or any privilege
capable of becoming an agreement, right or option, for the purchase or
transfer of any of Parent 3's ATCOR Shares or any interest therein or
right thereto, except pursuant to the terms of this Agreement; and
(h) Parent 3's ATCOR Shares comprise all of the securities of ATCOR of any
kind or nature which Parent 3 owns, directly or indirectly, or over
which Parent 3 exercises voting or other control.
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ARTICLE 4
COVENANTS
4.1 COVENANTS OF ATCOR AND THE PRINCIPAL SHAREHOLDERS
ATCOR and, for the purposes of Sections 4.1(a) and 4.1(b) only, each
of the Principal Shareholders covenant in favour of Forest that prior to the
Closing Date they shall do, take or perform or refrain from doing, taking and
performing such actions and steps as may be necessary or advisable to ensure
compliance with the following:
(a) None of the Principal Shareholders, ATCOR and their respective
Subsidiaries shall, nor shall any of the Principal Shareholders,
ATCOR and their respective Subsidiaries authorize or permit any of
their officers, directors or employees or any financial advisor,
attorney, accountant or other representative retained by them to:
(i) solicit, initiate or encourage (including, without limitation,
by way of furnishing information), any inquiry or the making of
any proposal to ATCOR or its shareholders from any person (other
than Forest, any affiliate of Forest or any person acting in
concert with Forest), which constitutes, or may reasonably be
expected to lead to, in each case whether in one transaction
or in a series of transactions, (A) an acquisition from ATCOR or
its shareholders of any securities (other than non-convertible
debt securities) of any of ATCOR and its Subsidiaries, (B) any
acquisition of a substantial amount of assets of any of ATCOR
and its Subsidiaries, (C) an amalgamation, merger or
consolidation of any of ATCOR and its Subsidiaries or (D) any
take-over bid, issuer bid, exchange offer, recapitalization,
liquidation, dissolution or similar transaction involving any
of ATCOR and its Subsidiaries or any other transaction the
consummation of which would or could reasonably be expected to
impede, interfere with, prevent or materially delay the
conclusion of any of the Amalgamation, the Acquisition and
the Ancillary Transactions or which would or could reasonably
be expected to materially delay the conclusion of any of the
Amalgamation or which would or could reasonably be expected
to materially reduce the benefits to Forest of the Acquisition
(collectively, the "TRANSACTION PROPOSALS") or agree to or
endorse any Transaction Proposal; or
(ii) enter into or participate in any discussions or negotiations
regarding any of the foregoing, or furnish to any other person
any information with respect to the business, properties,
operations, prospects or conditions (financial or otherwise) of
ATCOR and its Subsidiaries or any of the foregoing, or otherwise
cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other
person to do or seek any of the foregoing;
- 22 -
provided that nothing in this paragraph (a) shall be construed as
limiting the power of the board of directors of ATCOR to respond as
required by law to any submission or proposal regarding any take-over
bid or any acquisition or disposition of assets or to amalgamate,
merge or effect an arrangement or otherwise to fulfil their fiduciary
duties to ATCOR and its shareholders in relation to such transaction
(including, without limitation, to provide information on a
confidential basis enter into discussions and negotiations, or
withdraw or modify the Recommendation) if the board of directors of
ATCOR (having consulted outside counsel), concludes in good faith that
to do so would be a proper exercise of such directors' fiduciary
duties and provided further that the foregoing shall not entitle ATCOR
to terminate this Agreement, to not proceed with the ATCOR
Shareholders Meeting as contemplated herein or to withdraw from the
shareholders the vote on the Amalgamation;
(b) In the event that ATCOR, a Principal Shareholder or any of their
Subsidiaries receives any proposal or offer referred to in paragraph
(a) or an enquiry with respect thereto, ATCOR, or such Principal
Shareholder, as the case may be, will promptly notify Forest in
writing of all relevant details relating thereto;
(c) Each of ATCOR and its Subsidiaries
(i) will not declare any dividends on or make any other
distributions in respect of its outstanding shares;
(ii) will not issue, authorize or propose the issuance of, or
purchase or propose the purchase of any of its shares of any
class or securities convertible into or rights, warrants, or
options to acquire any such shares or other exchangeable or
convertible securities;
(iii) will not, directly or indirectly, enter into any agreement,
commitment, understanding or obligation with or in favour of
or make any payment (for services rendered or otherwise) to
any of the Principal Shareholders, other than management
fees payable to Parent 1 and Parent 2 and other amounts paid
to a Principal Shareholder in the ordinary course of
business of such Principal Shareholder, provided that the
amount by which such fees are paid at a rate exceeding the
rate of the fees paid during the year ended December 31,
1995 shall be included as Transaction Expenses.
(d) Each of ATCOR and its Subsidiaries:
(i) will carry on its business in, and only in,
the ordinary course in substantially the same manner as
heretofore conducted and, to the extent consistent with such
business, use commercially reasonable best business efforts
to preserve intact its present business organization,
licences and permits to the end that its goodwill and
business shall be maintained;
- 23 -
(ii) will keep adequate records and books of account reflecting
all its financial transactions, keep minute books containing
accurate records of all meetings and accurately reflecting
all corporate action of its shareholders and its board of
directors (including committees) and keep stock books and
ledgers correctly recording all transfers and issuances of
all capital stock;
(iii) will maintain, keep and preserve all its real property and
personal property used or useful in the proper conduct of
its business in good working order and condition, ordinary
wear and tear excepted;
(iv) will maintain adequate insurance;
(v) will comply in all material respects with all Regulations and
each decision, ruling, order or award of all arbitrators
applicable to its business, properties or operations;
(vi) will not acquire or agree to acquire any assets or acquire or
agree to acquire by amalgamating, merging or consolidating
with, purchasing substantially all of the assets of or
otherwise, any business or any corporation, partnership,
association or other business organization or division
thereof, other than in the ordinary course of business or
pursuant to commitments entered into after the date hereof
with the prior written consent of Forest;
(vii) will timely file all Tax Returns that are required to be
filed by it and pay before they become delinquent all Taxes
due pursuant to those Tax Returns or any Assessment received
by it or otherwise required to be paid, except Taxes being
contested in good faith by appropriate proceedings and for
which adequate reserves or other provisions are maintained;
(viii) other than as contemplated by this Agreement, will not amend
its articles of incorporation or by-laws;
(ix) will not, without the prior written consent
of Forest sell, transfer, assign, convey or otherwise dispose
of or create any Encumbrance on or allow the sale, transfer,
assignment, conveyance or disposition of or creation of any
Lien on any of its assets which have a total aggregate value
in excess of $2,500,000, other than personal property that is
replaced by equivalent property or consumed or sold in the
ordinary course of business and other than Liens arising in
the ordinary course of business as a result of operations
under agreements affecting the assets of ATCOR or its
Subsidiaries;
(x) will not, without the prior written consent of Forest, sell,
transfer, assign, convey or otherwise dispose of or create any
Encumbrance on or allow the sale, transfer, assignment,
conveyance or disposition of or creation of any
- 24 -
Lien on any of its Proprietary Rights or any assets relating
to the Marketing Business;
(xi) will not, without the prior written consent of Forest, make
(except pursuant to existing commitments), commit, or allow
the committal to make individual expenditures exceeding
$750,000 or expenditures exceeding $5,000,000 in the
aggregate, except where such expenditures are required to
preserve property or safeguard individuals from harm where
such property or individuals are in imminent danger of
material damage or injury;
(xii) will not, without the prior written consent of Forest,
alter the compensation, benefits or retention plans or
arrangements currently in place (including rights upon
termination) of any of its officers or employees and will
not enter into any new employment or management contract;
(xiii) will not, directly or indirectly, enter into any agreement,
commitment, understanding or other obligation with or in
favour of, or make any payment (for services rendered or
otherwise) to, any insider of ATCOR or any associate or
affiliate of any insider of ATCOR, except payment of
salaries and benefits to directors and senior officers of
ATCOR in accordance with ATCOR's salary and benefits program
in effect as at December 31, 1994 except for payments to
directors included in Transaction Expenses;
(xiv) will not guarantee the payment of indebtedness or incur
indebtedness for additional borrowed money or issue any debt
securities, except in connection with borrowings in the
ordinary course of business;
(xv) will not without the prior written consent of Forest, enter
into any contracts providing for the purchase, sale or
delivery of oil or gas with a term in excess of 95 days or
providing for delivery at a time more than 75 days after the
contract is entered into or any Financial Instrument
Transaction with a term in excess of 30 days;
(xvi) will not disclose to any person, other than officers,
directors, and key employees and professional advisors of
ATCOR who are bound by an agreement of confidentiality,
confidential information relating to Forest;
(e) ATCOR will:
(i) Notify Forest in writing: (x) promptly after the occurrence
thereof, of any material adverse change (actual, anticipated,
contemplated or, to the knowledge of ATCOR, threatened,
financial or otherwise) in its business affairs, operations,
assets, liabilities (contingent or otherwise) or capital and
(y) promptly after the occurrence, or failure to occur, of
any such event, information with respect to any event which,
if known as of the date of this
- 25 -
Agreement, would have been required to be disclosed to Forest or
which would be likely to cause any representation or warranty
of ATCOR herein or the Due Diligence Response to be untrue or
inaccurate in any material respect at any time from the date
of this Agreement to the Closing Date;
(ii) As soon as available, and in any event within 35 days after
the end of each month, provide Forest with the consolidated
balance sheet of ATCOR as of the end of the month and the
related consolidated statements of income and retained
earnings and changes in financial position for the portion of
the fiscal year of ATCOR ended with the last day of the
month, all in reasonable detail and stating in comparative
form the respective consolidated figures for the
corresponding date and period in the previous fiscal year
(subject to year-end adjustments);
(iii) Promptly after the commencement of each such matter, provide
to Forest written notice of all Actions affecting ATCOR or a
Subsidiary that, if adversely determined, could materially
and adversely affect the business, properties, operations,
prospects or condition (financial or otherwise) of ATCOR and
its Subsidiaries, taken as a whole, or the ability of ATCOR
or the Subsidiary, as the case may be, to perform its
obligations under this Agreement or any Ancillary Document
to which it is or may become a party; and
(iv) Provide Forest with such other information respecting the
condition or operations, financial or otherwise, of any of ATCOR
and its Subsidiaries as Forest may from time to time reasonably
request;
(f) ATCOR will provide to Forest, and to the officers, employees,
financial advisors, attorneys, accountants and other representatives
of Forest, reasonable access during normal business hours to all its
properties, books, contracts, commitments, personnel and records;
furnish as promptly as practicable to Forest and its respective
representatives such information with respect to the business,
properties, operations, prospects or conditions (financial or
otherwise) of ATCOR and its Subsidiaries as Forest may from time to
time reasonably request to enable Forest to effect a thorough
investigation of ATCOR; and to the extent reasonably requested by
Forest, cause its officers, personnel, employees, independent public
accountants and other representatives to, provide information
regarding ATCOR to, and otherwise cooperate with, Forest;
(g) ATCOR will use commercially reasonable best business efforts to do all
acts and things as may be necessary or desirable to ensure the
successful implementation of the Amalgamation, the Acquisition and the
Ancillary Transactions and, without limiting the generality of the
foregoing:
- 26 -
(i) ATCOR will use commercially reasonable best business efforts
to, as soon as practicable and in any event on or before
December 18, 1995, complete the preparation of the ATCOR
Information Circular and mail to its shareholders and file in
all jurisdictions where required the ATCOR Information
Circular and other documentation required in connection with
the ATCOR Shareholders Meeting, all in accordance with
National Policy No. 41 of the Canadian Securities
Administrators (except as such Policy may be waived by the
applicable authorities) and applicable law, and ATCOR will
use all reasonable efforts to, as soon as practicable and in
any event on or before January 18, 1996, convene the ATCOR
Shareholders Meeting for the purpose of approving the
Amalgamation;
(ii) ATCOR will cause a list of ATCOR shareholders as of the record
date for the ATCOR Shareholders Meeting, in a form suitable for
soliciting of ATCOR shareholders and prepared by the transfer
agent of ATCOR, to be delivered to Forest no later than the
second business day after such record date;
(iii) Subject to obtaining the required shareholder approval,
ATCOR will file Articles of Amalgamation implementing the
Amalgamation on the Closing Date in accordance with Section
2.1; and
(iv) ATCOR will use commercially reasonable best business efforts to
cause each of the conditions precedent set forth in Sections 5.1
and 5.3 which is within its control to be complied with;
(h) ATCOR will ensure that the ATCOR Information Circular and the
convening and conduct of the ATCOR Shareholders Meeting comply with
all applicable Regulations and policies of regulatory authorities and
will allow Forest and its counsel to review and comment on drafts of
the ATCOR Information Circular and participate in the preparation
thereof; and
(i) ATCOR will, within five business days of ATCOR or any of its
Subsidiaries receiving any written audit inquiry, assessment,
reassessment, confirmation or variation of an assessment, indication
that an assessment is being considered, request for filing of a waiver
or extension of time or any other notice in writing relating to Taxes,
losses or tax pools (an "ASSESSMENT"), deliver to Forest a copy
thereof together with a statement setting out, to the extent then
determinable, an estimate of the obligations, if any, of ATCOR, or the
appropriate Subsidiary, on the assumption that such Assessment is
valid and binding.
4.2 COVENANTS OF FOREST
Forest covenants in favour of ATCOR and the Principal Shareholders
that prior to the Closing Date, it shall do, take or perform or refrain from
doing, taking or performing such actions and steps as may be necessary or
advisable to ensure compliance with the following:
- 27 -
(a) Forest will, subject to the terms hereof, use commercially reasonable
best business efforts to do all other acts and things as may be
necessary or desirable to ensure the successful implementation of the
Acquisition, including the completion of the Offering or the providing
of other financing for the Acquisition;
(b) Each of Forest and its Subsidiaries:
(i) will carry on its business in, and only in, the ordinary course
in substantially the same manner as heretofore conducted and, to
the extent consistent with such business, use commercially
reasonable best business efforts to preserve intact its present
business organization, licences and permits to the end that its
goodwill and business shall be maintained;
(ii) will keep adequate records and books of account reflecting all
its financial transactions, keep minute books containing accurate
records of all meetings and accurately reflecting all corporate
action of its shareholders and its board of directors (including
committees) and keep stock books and ledgers correctly recording
all transfers and issuances of all capital stock;
(iii) will maintain, keep and preserve all its real property and
personal property used or useful in the proper conduct of
its business in good working order and condition, ordinary
wear and tear excepted;
(iv) will maintain adequate insurance;
(v) will comply in all material respects with all Regulations and
each decision, ruling, order or award of all arbitrators
applicable to its business, properties or operations;
(vi) will not acquire or agree to acquire any assets or acquire or
agree to acquire by amalgamating, merging or consolidating with,
purchasing substantially all of the assets of or otherwise, any
business or any corporation, partnership, association or other
business organization or division thereof, other than in the
ordinary course of business or pursuant to commitments entered
into after the date hereof with the prior written consent of
ATCOR;
(vii) will timely file all Tax Returns that are required to be
filed by it and pay before they become delinquent all Taxes
due pursuant to those Tax Returns or any Assessment received
by it or otherwise required to be paid, except Taxes being
contested in good faith by appropriate proceedings and for
which adequate reserves or other provisions are maintained; and
(viii) will not disclose to any person, other than officers,
directors, and key employees and professional advisors of
Forest who are bound by an agreement of confidentiality,
confidential information relating to ATCOR;
- 28 -
(c) Forest will promptly notify ATCOR in writing of:
(i) any material adverse change (actual, anticipated, contemplated
or, to the knowledge of Forest, threatened, financial or
otherwise, in its business, affairs, operations, assets,
liabilities (contingent or otherwise) or capital of Forest or
its ability to complete the Acquisition, the Ancillary
Transactions or the Offering;
(ii) any change in any representation or warranty set forth in
Section 3.2 hereof which change is or may be of such a nature as
to render any such representation or warranty misleading or
untrue; or
(iii) any material fact which arises and which would have been
required to be stated herein had the fact arisen on or prior
to the date of this Agreement.
Forest shall in good faith discuss with ATCOR any change in
circumstances (actual, anticipated, contemplated or, to the knowledge
of Forest, threatened, financial or otherwise) which is of such a
nature that there may be a reasonable question as to whether notice
need be given to ATCOR pursuant to this section;
(d) Forest will provide to ATCOR, and to the officers, employees,
financial advisors, attorneys, accountants and other representatives
of ATCOR, reasonable access during normal business hours to all its
properties, books, contracts, commitments, personnel and records;
furnish as promptly as practicable to ATCOR and its respective
representatives such information with respect to the business,
properties, operations, prospects or conditions (financial or
otherwise) of Forest and its Subsidiaries as ATCOR may from time to
time reasonably request to enable ATCOR to effect a thorough
investigation of Forest; and to the extent reasonably requested by
ATCOR, cause its officers, personnel, employees, independent public
accountants and other representatives to, provide information
regarding Forest, and otherwise cooperate with, ATCOR;
(e) Except as contemplated herein, neither Forest nor any person
controlled directly or indirectly by Forest will, except pursuant to
the terms of this Agreement, acquire or agree to acquire, or make any
proposal or offer to acquire, directly or indirectly or in any manner,
any securities of ATCOR or any of its Subsidiaries;
(f) Forest shall forthwith upon completion of the Offering, deposit in
escrow with the Escrow Agent an amount equal to the Redemption Amount
plus the amount required to purchase all the shares of Amalco which
are tendered to the Offer, on terms acceptable to ATCOR, to be
released only for the purposes specified in Section 2.1(c) and (d)
hereof.
(g) Forest will use all reasonable efforts to cause each of the conditions
set forth in Sections 5.1 and 5.3 which is within its control to be
complied with.
- 29 -
4.3 MUTUAL COVENANTS OF ATCOR AND FOREST
Each of ATCOR and Forest covenant in favour of the other that prior to
the Closing Date, it shall and it shall cause each of its subsidiaries, to do,
take or perform or refrain from doing, taking and performing such actions and
steps as may be necessary or advisable to ensure compliance with the following:
(a) each of ATCOR and Forest will use commercially reasonable best
business efforts to satisfy (or cause the satisfaction of) the
conditions precedent to its obligations hereunder and to take, or
cause to be taken, all other action and to do, or cause to be done,
all other things necessary, proper or advisable under applicable laws
and regulations to complete the Amalgamation, the Acquisition, the
Ancillary Transactions and the Offering including using commercially
reasonable best business efforts to:
(i) obtain all necessary waivers, consents and approvals required
to be obtained by it from other parties to loan agreements,
leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as
are required to be obtained by it under any Canadian or foreign
law or regulation; and
(iii) effect all necessary registrations and filings and
submissions of information requested by governmental
authorities required to be effected by it in connection with
the Amalgamation, the Acquisition, the Ancillary Documents
and the Offering; and
(b) each of ATCOR and Forest will use commercially reasonable best
business efforts to cooperate with the other in connection with the
performance by the other of its obligations under this subsection
including, without limitation, continuing to provide reasonable access
to information and to maintain ongoing communications as between
Forest and ATCOR.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 MUTUAL CONDITIONS PRECEDENT
Subject to Section 5.4, the respective obligations of ATCOR and the
Principal Shareholders and Forest to complete the transactions contemplated by
Section 2.1 and the obligation of ATCOR to file articles of Amalgamation to give
effect to the Amalgamation, except that the condition specified in paragraph (i)
below shall not apply to ATCOR's obligation to file Articles of Amalgamation,
shall be subject to the satisfaction, on or before the Closing Date, of the
following conditions, any of which may be waived in whole or in part, by the
mutual consent of such parties without prejudice to their right to rely on any
other of such conditions:
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(a) the Amalgamation shall have received the affirmative vote of not less
than 66 2/3% of the votes cast by the holders of each of the Class A
Shares and the Class B Shares, and by the holders of all ATCOR Shares;
(b) all other consents, orders and approvals necessary or that ATCOR and
Forest agree are appropriate for the completion of the Amalgamation,
the Acquisition and the Ancillary Transactions shall have been
obtained;
(c) there shall be no action taken under any existing applicable law or
regulation, nor any statute, rule, regulation or order which is
enacted, enforced, promulgated or issued by any court, department,
commission, board, regulatory body, government or governmental
authority or similar agency, domestic or foreign, that:
(i) makes it illegal or otherwise directly or indirectly restrains,
enjoins or prohibits the Amalgamation, the Acquisition or the
Ancillary Transactions, where the failure to complete such
transactions would have a material adverse effect on the
completion of the Amalgamation, the Acquisition or the Ancillary
Transactions;
(ii) results in a judgement or assessment of material damages,
directly or indirectly, relating to the transactions
contemplated herein; or
(iii) imposes or confirms material limitations on the ability of
Forest to effectively exercise full rights of ownership of
the shares of Amalco to be acquired by Forest pursuant to
the Acquisition;
(d) there shall not be in force any law, order or decree making illegal,
restraining or enjoining the completion of the Amalgamation,
Acquisition or Ancillary Transactions or which enables any court,
department, commission, board, regulatory body, government or
governmental authority or similar agency, domestic or foreign, as a
result of the transactions contemplated herein, to:
(i) prohibit Forest or any of its Subsidiaries or ATCOR or any of its
Subsidiaries from owning or operating all or any portion of their
respective businesses or assets; or
(ii) compel Forest or any of its Subsidiaries or ATCOR or any of its
Subsidiaries to dispose of or hold separately all or any portion
of their respective businesses or assets or the ATCOR Shares or
shares of Amalco to be acquired by Forest pursuant to the
Acquisition;
if such prohibition or compulsion could have a material adverse effect
on Forest and its Subsidiaries (including Amalco), on a consolidated
basis, after completion of the Acquisition;
- 31 -
(e) ATCOR and the other parties thereto shall have entered into the Sale
Documents in a form satisfactory to ATCOR and Forest;
(f) there shall have been filed notification and report forms to the
extent required under the INVESTMENT CANADA ACT and the COMPETITION
ACT and there shall be no legal impediment under such Acts to the
transactions contemplated hereby;
(g) an Approval of the Alberta Energy and Utilities Board shall have been
obtained pursuant to the PUBLIC UTILITIES BOARD ACT and GAS UTILITIES
ACT;
(h) none of the consents, orders or approvals contemplated herein shall
contain terms or conditions or require undertakings or security deemed
unacceptable by ATCOR or Forest, acting reasonably; and
(i) the Amalgamation shall have been completed.
5.2 CONDITIONS TO OBLIGATIONS OF ATCOR AND THE PRINCIPAL SHAREHOLDERS
In addition to the conditions set forth in Section 5.1 and subject to
Section 5.4, the obligations of ATCOR and the Principal Shareholders to complete
the transactions contemplated by Section 2.1 are subject to the satisfaction, on
or before the earlier of the dates specified in each paragraph below or the
Closing Date, of the following conditions, any of which may be waived by ATCOR,
Parent 1, Parent 2 or Parent 3 as applicable in whole or in part without
prejudice to such party's right to rely on any other condition in its favour:
(a) the covenants of Forest to be performed on or before the Closing Date
pursuant to the terms of this Agreement shall have been duly performed
in all material respects by Forest, and ATCOR shall have received a
certificate to that effect dated the Closing Date, signed by two
senior officers of Forest on behalf of Forest, and ATCOR shall not
have reasonably established that it has knowledge to the contrary;
(b) ATCOR and the Principal Shareholders shall have received on or before
December 24, 1995 satisfactory assurances with respect to the
Offering;
(c) on or before the Closing Date, Forest shall have furnished ATCOR and
the Principal Shareholders with certified copies of the resolutions
duly passed by the board of directors of Forest approving this
Agreement and the completion of the transactions contemplated hereby
and directing the submission for approval by Forest shareholders of
any matters hereunder requiring such approval;
(d) the representations and warranties of Forest set out in Section 3.2
shall have been true and correct in all material respects on the date
of this Agreement and such representations and warranties shall be
true and correct in all material respects on the Closing Date as if
made on and as of such date, except as affected by transactions
contemplated or permitted by this Agreement, and ATCOR and the
Principal
- 32 -
Shareholders shall have received a certificate from Forest to that
effect, dated the Closing Date and signed by two senior officers of
Forest, and ATCOR and the Principal Shareholders shall not have
reasonably established that it has knowledge to the contrary; and
(e) ATCOR and the Principal Shareholders shall have received an opinion of
counsel to Forest in a form acceptable to them, acting reasonably, as
to the matters set forth in Sections 3.2(a), (b), (c), (d) and (e)
which opinion may rely on certificates of an officer or officers of
Forest as to matters of fact.
Notwithstanding the foregoing conditions, if any such condition fails due to
breach with respect to any representation or warranty set forth in
Section 3.2(f) or any covenant set forth in Section 4.2, such conditions shall
be deemed to be satisfied if within five business days after receipt by Forest
of written notice of such breach (x) Forest delivers assurances satisfactory to
ATCOR, Parent 1 and Parent 2 with respect to the Offering, (y) the condition set
forth in paragraph (c) above has been satisfied or (z) Forest deposits
$185,966,805.80 with the Escrow Agent.
5.3 CONDITIONS TO OBLIGATION OF FOREST
In addition to the conditions set forth in Section 5.1 and subject to
Section 5.4, the obligation of Forest to complete the transactions contemplated
by Section 2.1 is subject to the satisfaction, on or before the Closing Date, of
the following conditions, any of which may be waived by Forest in whole or in
part without prejudice to Forest's right to rely on any other condition in
favour of Forest:
(a) the covenants of ATCOR and the Principal Shareholders to be performed
on or before the Closing Date pursuant to the terms of this Agreement
shall have been duly performed in all material respects by ATCOR and
the Principal Shareholders and Forest shall have received a
certificate from ATCOR and the Principal Shareholders to that effect,
dated the Closing Date and signed by two senior officers of ATCOR and
the Principal Shareholders, and Forest shall not have reasonably
established that it has knowledge to the contrary;
(b) on or before the Closing Date, ATCOR and the Principal Shareholders
shall have furnished Forest with:
(i) certified copies of the resolutions duly passed by the board of
directors of ATCOR and the Principal Shareholders approving this
Agreement and the completion of the transactions contemplated
hereby and, in the case of ATCOR, directing the submission of the
Amalgamation for approval at the ATCOR Shareholders' Meeting; and
(ii) certified copies of the resolutions duly passed at the ATCOR
Shareholders' Meeting approving the Amalgamation;
- 33 -
(c) the representations and warranties of ATCOR and the Principal
Shareholders set out in Sections 3.1, 3.3, 3.4 and 3.5 shall have been
true and correct in all material respects on the date of this
Agreement and such representations and warranties shall be true and
correct in all material respects on the Closing Date (before giving
effect to the Amalgamation) as if made on and as of such date, except
as affected by transactions contemplated or permitted by this
Agreement, and Forest shall have received certificates from ATCOR, and
each of the Principal Shareholders to that effect, dated the Closing
Date and signed by two senior officers of ATCOR and each of the
Principal Shareholders and Forest shall not have reasonably
established that it has knowledge to the contrary;
(d) on the Closing Date, ATCOR shall have furnished Forest with a
certificate of ATCOR, signed by two senior officers of ATCOR,
certifying as to the number of shares in respect of which holders of
the ATCOR Shares have exercised rights of dissent in respect of the
Amalgamation;
(e) no material adverse change (or any event, condition or state of facts
which may reasonably be expected to give rise to any such change)
shall have occurred in the assets, liabilities, business, operations
or capital of ATCOR from and after the date hereof (excluding any such
change, event, condition or state of facts resulting from changes in
general economic conditions, including changes in interest rates or
prices received by ATCOR or any of its Subsidiaries for oil, gas or
other commodities);
(f) shareholders representing not more than five (5%) percent of the
aggregate of the issued and outstanding ATCOR Shares shall be
Dissenting Shareholders;
(g) Forest shall have completed the Offering and received funds of not
less than $185,966,805 therefrom;
(h) ATCOR shall have completed the Reorganization prior to the Closing
Date;
(i) Forest shall have received an opinion of counsel to ATCOR and the
Principal Shareholders in a form acceptable to Forest, acting
reasonably, as to the matters set forth in paragraphs (a), (b), (c),
(d) and (e) of Sections 3.1, 3.3, 3.4 and 3.5 which opinion may rely
on certificates of an officer or officers of ATCOR and the Principal
Shareholders as to matters of fact.
5.4 MATERIALITY THRESHOLD
Notwithstanding the foregoing conditions, if any such condition fails
due to a breach with respect to any representation or warranty set forth in
Section 3.1 or any covenant set forth in Section 4.1(d), (e), (f), (g), (h) or
(i) such condition shall be deemed to be satisfied and such breach shall not
give rise to a right of Forest to terminate this Agreement unless such breaches
in the aggregate have a material adverse effect on ATCOR on a consolidated basis
taken as a whole.
- 34 -
5.5 NOTICE OF NON-COMPLIANCE
Each of ATCOR and Forest shall give prompt notice to each of the other
of the occurrence, or failure to occur, at any time from the date hereof to the
Closing Date of any event or state of facts which occurrence or failure would,
or would be likely to:
(a) cause any of the representations or warranties of either party
contained herein to be untrue or inaccurate in any material respect,
or
(b) result in the failure to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied hereunder,
provided that no such notification shall affect the representations or
warranties of the parties or the conditions to the obligations of the parties
hereunder.
ARTICLE 6
OTHER COVENANTS
6.1 INDEMNIFICATION
(a) Each of ATCOR, Parent 1 and Parent 2 shall severally indemnify Forest
against and hold it harmless from any and all Losses in any way
relating to or allegedly arising out of any breach of its respective
representations, warranties, covenants or agreements contained in this
Agreement, the Amalgamation Agreement or any Ancillary Document,
whether or not the Acquisition is concluded or the obligations of the
parties hereunder are terminated pursuant to Article 7 or otherwise.
(b) ATCOR shall indemnify Forest and its "CONTROLLING PERSONS" (within the
meaning of Section 20 of the EXCHANGE ACT) and their respective
shareholders, directors, officers, employees, agents and affiliates
against, and hold each of those persons harmless from, any and all
Losses in any way relating to or allegedly arising out of any untrue
statement of a material fact relating solely to ATCOR contained in the
Registration Statement (or any amendment or supplement thereto)
relating to the Offering or any failure to state a material fact
relating to ATCOR required to make any statement contained therein not
misleading in light of the circumstances under which it was made.
ATCOR shall have no obligation to Forest or any other person under
this paragraph (b) with respect to any of the foregoing arising
primarily out of the gross negligence or wilful misconduct of Forest
or the other Indemnified Person, as the case may be, as determined by
a final judgment of a court of competent jurisdiction or to the extent
that the Registration Statement presents any information in a manner
different from the presentation in the documents referred to in
Section 3.1(f)(i) or (ii) or not contained in those documents, and
such information as so presented in the Registration Statement would
not have been misleading but for the different manner of presentation
in the Registration Statement.
- 35 -
(c) Each of Parent 1 and Parent 2 shall jointly and severally indemnify
Forest against and hold it harmless from (i) any Loss suffered with
respect to Taxes as a result of any Intercompany Transaction to the
extent such Taxes exceed Taxes due pursuant to the Tax Returns and
(ii) any Loss suffered arising out of any direct or indirect claim
made by any shareholder of ATCOR (other than Forest) in respect of any
Intercompany Transaction.
(d) Forest shall indemnify each of ATCOR, Parent 1 and Parent 2 and each
of their "CONTROLLING PERSONS" (within the meaning of Section 20 of
the EXCHANGE ACT) from time to time, and their respective
shareholders, directors, officers, employees, agents and affiliates,
against, and hold each of those persons harmless from, any and all
losses in any way relating to or allegedly arising out of any untrue
statement of a material fact contained in the Registration Statement
(other than information relating to ATCOR), other notification, or any
materials filed by Forest with the Securities and Exchange Commission
or distributed or otherwise disseminated to the public (or any
amendment or supplement thereto), relating to the Offering or any
failure to state a material fact (other than information relating to
ATCOR) required to make any statement contained therein not misleading
in light of the circumstances under which it was made. Forest shall
have no obligation to ATCOR and the Principal Shareholders or any
other person under this paragraph (d) with respect to any of the
foregoing arising primarily out of the gross negligence or wilful
misconduct of any of ATCOR and the Principal Shareholders or the other
Indemnified Person, as the case may be, as determined by a final
judgment of a court of competent jurisdiction.
(e) Forest shall indemnify each of ATCOR and the Principal Shareholders
against and hold them harmless from any and all losses in any way
relating to or allegedly arising out of any breach of the
representations, warranties, covenants or agreements of Forest
contained in this Agreement, whether or not the Amalgamation is
concluded or the obligations of the parties under this Agreement are
terminated.
(f) If any Action indemnifiable under this Section shall be brought,
asserted or threatened against any person, the Indemnified Person
shall promptly notify the Indemnifying Persons. A failure to notify
an Indemnifying Person timely or at all shall reduce the liabilities
and obligations of the Indemnifying Person under this Section only to
the extent the Indemnifying Person is actually prejudiced by such
failure. The Indemnifying Persons shall be entitled to assume the
defense of the Action, including the employment of counsel
satisfactory to the Indemnified Person and the payment of all related
fees and expenses, but the Indemnified Person may employ separate
counsel in the Action and participate in the defense of the Action at
its own expense. However, the Indemnified Person may by written
notice to the Indemnifying Person assume the defense of the Action,
including the employment of counsel, at the expense of the
Indemnifying Person (except that the Indemnifying Person shall not be
liable for the fees and expenses of more than one such separate
counsel with respect to the Action) if:
- 36 -
(i) without a delay that shall be prejudicial to the interests of the
Indemnified Person, the Indemnifying Person fails to:
(A) acknowledge in writing to the Indemnified Person the
liability of the Indemnifying Person to the Indemnified Person
under this Section with respect to the Action, (B) assume the
defense, (C) post an indemnity or similar bond (in form and
substance satisfactory to the Indemnified Person) in an amount
equal to the full amount for which the Indemnified Person may be
liable as a result of the Action (including penalties and
interest) or provide other evidence satisfactory to the
Indemnified Person of the ability of the Indemnifying Person to
pay that amount in full or (D) employ counsel reasonably
satisfactory to the Indemnified Person;
(ii) the persons against whom the Action shall have been brought,
asserted or threatened (including any impleaded parties) include
both the Indemnified Person and the Indemnifying Person and the
Indemnified Person is advised by counsel that there may be one or
more legal defenses available to the Indemnified Person that are
different from or additional to those available to the
Indemnifying Person; or
(iii) the Indemnified Person reasonably believes that the Action
or an unfavourable resolution of the Action may materially
and adversely affect the business, properties, operations,
prospects or condition (financial or otherwise) of the
Indemnified Person and its affiliates other than as a result
of the payment of money damages.
If the Indemnified Person has assumed the defense of the Action
pursuant to any of the conditions stated above, then the Indemnifying
Person shall not have the right to assume the defense of the Action on
behalf of the Indemnified Person and the Indemnified Person shall have
the right to control the defense, compromise or settlement of any
indemnifiable Action on behalf of and for the account and risk of the
Indemnifying Person. The Indemnifying Person shall be bound by the
result of the defense of any Action, whether the defense shall have
been assumed by the Indemnifying Person or by the Indemnified Person,
and shall indemnify the Indemnified Person against, and hold the
Indemnified Person harmless from, all Losses in any way relating to or
allegedly arising in connection with the matter or matters that shall
be the basis of the Action or otherwise connected to the Action,
except that the Indemnifying Person shall not be liable for the
payment of the amount of money damages provided in a settlement of an
indemnifiable Action defended by the Indemnified Person pursuant to
the second or third conditions stated above that shall have been
effected without the written consent of the Indemnifying Person, which
consent shall not be unreasonably withheld.
(g) Notwithstanding anything in this Section to the contrary, if, in
connection with an Action indemnifiable under this Section, a
Governmental Body or other person having authority or jurisdiction
over a matter or matters related to the Action shall
- 37 -
have rendered, entered or granted a binding judgment, decision,
ruling, order or award with respect to the matter or matters
providing for the payment of money damages or the claimant and the
Indemnifying Person shall have agreed to settle the Action for an
amount of money damages without reservation of any rights or
defenses against the Indemnified Person, and if the Indemnified
Person elects to appeal the judgment, decision, ruling, order or
award or declines to agree to the proposed settlement, as the case
may be, then the Indemnified Person may continue to defend the
Action, free of any participation by the Indemnifying Person, but
the amount of any ultimate liability of the Indemnifying Person
under this Section with respect to Losses related to or allegedly
arising in connection with the matter or matters that shall have
been comprehended by the judgment, decision, ruling, order or award
or by the proposed settlement, as the case may be, shall then be
limited to the amount of the judgment, decision, ruling, order or
award or the amount of the proposed settlement, as the case may be,
plus the other indemnified Losses of the Indemnified Person relating
to the matter or matters through the date of its election to appeal or
its rejection of the proposed settlement, as the case may be.
(h) If the indemnification provided for in paragraph (b) or (d) hereof is
unavailable to an Indemnified Person (other than by reason of
exceptions provided in this Section), or is insufficient to hold
harmless an Indemnified Person in respect of any Loss then the
Indemnifying Person, in lieu of indemnifying the Indemnified Person,
shall contribute to the amount paid or payable by the Indemnified
Person as a result of the Loss in the proportion that is appropriate
to reflect the relative fault of the Indemnifying Person on the one
part and of the Indemnified Person on the other part in connection
with the events or circumstances which resulted in the Loss as well as
any other relevant equitable considerations. The relative fault of
the Indemnifying Person on the one part and of the Indemnified Person
on the other part shall be determined by reference to, among other
things, those persons' relative intent, knowledge, access to
information and opportunity to correct or prevent the events or
circumstances resulting in the Loss. The amount of any Loss suffered,
incurred or paid any person shall be deemed to include all expenses
incurred or paid by the person in connection with investigating or
defending any Action, including, but not limited to, the fees and
expenses of counsel.
(i) The indemnification set forth in this Section shall be in addition to
any other obligations or liabilities of an Indemnifying Person to an
Indemnified Person at common law or otherwise. The provisions of this
Section shall not eliminate or otherwise limit the right of any
Indemnified Person or any other person to seek to recover
contribution, damages or otherwise enforce its rights against the
Indemnifying Person or any other person without regard to the
provisions of this Section. If at any time all or any part of any
indemnification payment hereunder is or must be rescinded or returned
to the person making such indemnity payment for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or
reorganization of any person) the indemnification obligations of the
person
- 38 -
making such payment shall be reinstated with respect to such payment
so rescinded or returned as though such payment had never been made
or received.
6.2 COVENANTS OF PRINCIPAL SHAREHOLDERS
Each of the Principal Shareholders covenants in favour of Forest that
it shall do, take or perform or refrain from doing, taking and performing such
actions and steps as may be necessary or advisable to ensure compliance with the
following:
(a) Prior to the Closing Date, the Principal Shareholder will not,
directly or indirectly, sell, assign, transfer or otherwise dispose of
any of the Principal Shareholder's ATCOR Shares or in the case of
Parent 1, shares of Newco, or commit to their disposal, or enter into
any negotiations with the view to such disposal, other than pursuant
to the Amalgamation or this Agreement, except as required by Forest
pursuant to Section 6.3.
(b) Prior to the Closing Date, each Principal Shareholder will vote as a
shareholder of ATCOR against any proposal, other than to approve the
Amalgamation, submitted to the shareholders of ATCOR proposing that
ATCOR directly or indirectly, do any of the things described in
Section 4.1(a).
(c) Prior to the Closing Date, each Principal Shareholder will take or do
all acts and things as may be necessary or appropriate to ensure the
successful implementation of the Amalgamation and, without limiting
the generality of the foregoing:
(i) each Principal Shareholder will exercise all voting rights
attaching to ATCOR Shares held by it in favour of approving the
Amalgamation, and contrary to any challenge to or modification of
the Amalgamation not consented to by Forest, at the ATCOR
Shareholders' Meeting;
(ii) each Principal Shareholder will not take any action which might,
directly or indirectly, interfere or be inconsistent with or
otherwise adversely affect the implementation of the Amalgamation
and will vote as a shareholder against any proposals submitted to
the shareholders of ATCOR proposing that ATCOR take any such
action;
(iii) each Principal Shareholder agrees that it will not request
any director of ATCOR to take or do any step or action which
would reasonably be expected to make the implementation of
the Amalgamation or the completion of the transactions
contemplated herein less likely;
(iv) each Principal Shareholder will cooperate with Forest and ATCOR
in obtaining such other consents, orders or approvals as are
necessary or appropriate for the completion of the Amalgamation,
the Acquisition and the
- 39 -
Ancillary Transactions and provide in a timely manner all
information required in connection therewith.
(d) Parent 1 will cause Newco to be incorporated, will hold all
outstanding shares of Newco and will cause Newco to effect the
Amalgamation.
6.3 SALE OF PRINCIPAL SHAREHOLDERS' ATCOR SHARES
(a) Subject to paragraph (f), in the event a Transaction Proposal is made
prior to the ATCOR Shareholders' Meeting, each Principal Shareholder
agrees to cause ATCOR to complete the Reorganization and to tender and
not withdraw all of the ATCOR Shares held, directly or indirectly, by
such Principal Shareholder, to any offer made by Forest to all holders
of ATCOR Shares for a consideration of not less than $4.88 per share,
provided such offer is made prior to the date which is 10 days after
the date of the ATCOR Shareholders' Meeting.
(b) Subject to paragraphs (e) and (f) the Principal Shareholders agree to
tender their ATCOR Shares to any third party offer therefor made
generally to holders of Class A Shares and Class B Shares if Forest so
requires. If the Principal Shareholders shall dispose of any ATCOR
Shares as consented to or required by Forest, or in any manner
directly or indirectly, the Principal Shareholders shall pay to Forest
a fee equal to 50% of the amount by which (i) the aggregate proceeds
of such disposition exceeds (ii) the aggregate of the amount which
would be received by the Principal Shareholders pursuant to this
Agreement (adjusted for any differences in the value to the Principal
Shareholders arising from transactions collateral to such disposition,
from the Sale Transactions) and $2 million.
(c) If Forest shall acquire ATCOR Shares pursuant to the Acquisition, and
within 120 days of the Closing Date shall re-sell such shares at a
price in excess of $4.88 per share, Forest shall pay to the Principal
Shareholders an amount equal to $2 million in respect of their
expenses in connection with negotiating and entering into this
Agreement and the Ancillary Transactions and shall pay to the persons
who were holders of ATCOR Shares on the Closing Date an aggregate
amount equal to 50% of the amount by which the proceeds of sale of
such shares (after deducting such $2 million) exceeds $4.88 per
share. For greater certainty, this obligation shall not arise upon
(i) a transaction in which ATCOR merges with Saxon or with any entity
controlled by Forest; or (ii) a transaction in which ATCOR merges with
any entity and the resulting entity is controlled directly or
indirectly controlled by Forest; (iii) a sale, merger or joint venture
of the Subsidiary carrying on the Marketing Business; (iv) a public
offering of ATCOR Shares.
(d) If within 120 days after acquiring the ATCOR Shares pursuant to
paragraph (a), Forest shall offer to acquire ATCOR Shares held by
other shareholders, at a higher price, Forest shall pay, to those
persons who sold ATCOR Shares pursuant to the
- 40 -
Offer described in paragraph (a), the excess of the higher price
over the price paid to such selling shareholders;
(e) Paragraph (b) shall cease to apply after termination of this Agreement
pursuant to its terms by ATCOR or a Principal Shareholder as a result
of failure of Forest to complete the Offering (other than any such
failure following the announcement of a Transaction Proposal prior to
termination of this Agreement) except with respect to a sale within
120 days after (i) the announcement of a Transaction Proposal prior to
termination of this Agreement; or (ii) the board of directors of ATCOR
withdrawing the Recommendation.
(f) If Forest shall desire to make an offer to acquire ATCOR Shares
pursuant to paragraph (a) or shall require the Principal Shareholders
to tender their ATCOR Shares pursuant to paragraph (b), the Principal
Shareholders and Forest will co-operate with each other and with any
bidder to whom Forest desires the Principal Shareholders to tender the
Principal Shareholder's ATCOR Shares to achieve substantially the same
income tax consequences to the Principal Shareholders as the
Acquisition. If such result is not possible, the Principal
Shareholders shall not be required by paragraphs (a) or (b) to sell
their ATCOR Shares.
6.4 PUBLIC OFFERING
Within 10 days after the execution and delivery of this Agreement,
Forest shall file a registration statement with the Securities and Exchange
Commission in contemplation of a public offering of its capital stock. Forest
will use commercially reasonable best business efforts to cause the registration
statement to become effective and to sell the registered shares in a public
offering as contemplated herein not later than February 14, 1996. ATCOR will
cooperate with Forest in the preparation of the registration statement and will
furnish or make available all information, including financial information and
reserve reports, with respect to ATCOR and its properties which Forest
reasonably requests for inclusion therein in order to comply with applicable
Regulations.
6.5 NON-COMPETITION
(a) Each of Parent 1 and Parent 2 covenants with Forest and ATCOR that for
a period of 3 years following Closing (the "Restricted Period"),
neither Parent 1 nor Parent 2 nor any of their respective affiliates
shall in any way, directly or indirectly:
(i) interfere in or with the employment or engagement of any of the
Marketing Employees within the Marketing Business;
(ii) attempt to induce any of the Marketing Employees to terminate his
or her respective employment or engagement within the Marketing
Business;
(iii) attempt to induce any of the Marketing Employees to breach
the terms or conditions of his or her respective employment
or engagement contract
- 41 -
including, without limitation, any breach related to the
disclosure or misuse of confidential or otherwise
proprietary information; or
(iv) employ or engage or seek to employ or engage any of the Marketing
Employees directly or indirectly in any business carried on by
Parent 1, Parent 2 or any of their respective Affiliates,
regardless of whether such Marketing Employees continue to be
employed within the Marketing Business;
(v) utilize in any manner any of the Trade Secrets of ATCOR.
(b) Forest covenants with Parent 1, Parent 2 and Parent 3 that for the
Restricted Period, neither Forest nor any of its affiliates shall in
any way, directly or indirectly utilize in any manner any of the Trade
Secrets of Parent 2.
(c) The Restricted Period shall be extended by the length of any period
during which any of the Principal Shareholders or their Subsidiaries
or Forest is in breach of the terms of this Section 6.5 and shall be
reduced by such period as may be required so that the covenants in
this section 6.5 are enforceable.
(d) Each of the Principal Shareholders and Forest acknowledges that the
covenants set forth in this Section 6.5 are an essential element of
this Agreement and that, but for the agreement of each of the
Principal Shareholders and Forest to comply with these covenants,
Forest and the Principal Shareholders would not have entered into this
Agreement. Each of the Principal Shareholders and Forest acknowledges
that this Section 6.5 constitutes an independent covenant and shall
not be affected by performance or nonperformance of any other
provision of this Agreement by Forest and the Principal Shareholders.
Each of the Principal Shareholders and Forest has independently
consulted with its counsel and after such consultation agrees that the
covenants set forth in this Section 6.5 are reasonable and proper.
(e) If any part of this Section 6.5 is unenforceable at law or in equity,
then the covenants and agreements set forth in this Section shall be
reduced in scope or amended, as to term, geographical area or
otherwise, to the extent required so that such agreements and
covenants, as so reduced or amended, are enforceable at law and in
equity and the unenforceable part shall be deemed to be severed from
the balance of the provisions of this Section which remaining
provisions shall survive and be of full force and effect.
6.6 EXPENSES
Parent 1 and Parent 2 jointly and severally agree that, if the
Acquisition is completed, they shall reimburse ATCOR for any amount by which
Transaction Expenses exceed $1 million.
- 42 -
6.7 NAME
Forest agrees that, if the Acquisition is completed, it shall within
90 days after the Closing Date, cause ATCOR and its Subsidiaries to change their
name to a name which does not include the word "ATCOR" or "ATCO".
ARTICLE 7
AMENDMENT AND TERMINATION
7.1 AMENDMENT
This Agreement may at any time and from time to time, before or after
the holding of the ATCOR Shareholders' Meeting but not later than the Closing
Date, be amended by written agreement of the parties hereto without, subject to
applicable law, further notice to or authorization on the part of their
respective shareholders and any such amendment may, without limitation:
(a) change the time for performance of any of the obligations or acts of
the parties hereto;
(b) waive any inaccuracies or modify any representation or warranty
contained herein or in any document delivered pursuant hereto; or
(c) waive compliance with or modify any of the conditions precedent
contained herein.
7.2 TERMINATION
This Agreement may be terminated
(a) at any time prior to the Closing Date by mutual agreement of the
parties hereto, without further action on the part of the shareholders
of ATCOR;
(b) by ATCOR, Parent 1, Parent 2 or Parent 3 or Forest by notice to the
others if the Closing has not occurred by February 14, 1996, or such
other date as may be agreed to by the parties hereto in writing;
(c) by ATCOR, Parent 1, Parent 2 or Parent 3 by notice to Forest in the
event of a breach of this Agreement by Forest, provided, however, that
if such breach is with respect to any representation or warranty set
forth in Section 3.2(f) or any covenant set forth in Section 4.2, this
Agreement may not be terminated by ATCOR, Parent 1 or Parent 2 if
within five business days after receipt by Forest of written notice of
such breach (x) Forest delivers assurances satisfactory to ATCOR,
Parent 1 and Parent 2 with respect to the Offering, (y) the condition
set forth in Section 5.2(c) has been satisfied, or (z) Forest deposits
$185,966,805.80 with the Escrow Agent;
- 43 -
(d) subject to Section 5.4, by Forest by notice to ATCOR in the event
of a breach of this Agreement by any of ATCOR, Parent 1, Parent 2 or
Parent 3.
7.3 EFFECT OF TERMINATION
If this Agreement is validly terminated pursuant to any provision of
this Agreement the parties shall return all materials and copies of all
materials delivered to ATCOR or Forest, as the case may be, or their agents and
except for any liability arising or which may arise as a result of any breach by
either party of its obligations hereunder prior to such termination no party
shall have any further obligation to the other party hereunder with respect to
this Agreement. Sections 6.1, 8.5 and this Section shall survive any
termination of this Agreement and continue in full force and effect.
ARTICLE 8
GENERAL
8.1 NOTICES
All notices which may or are required to be given pursuant to any
provision of this Agreement shall be given or made in writing and shall be
served personally or sent by telecopy and in the case of:
(a) ATCOR, addressed to:
ATCOR Resources Ltd.
000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Art X. Xxxxxx
Telecopier: (000) 000-0000
(b) Forest, addressed to:
Forest Oil Corporation
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: V. Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
- 44 -
(c) ATCO Ltd.:
0000, 000 - 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
(d) Canadian Utilities Limited:
00000 - 000 Xxxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
(e) CanUtilities Holdings Ltd.:
1600, 000 - 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
or such other address or telecopier number as the parties may, from time to
time, advise the other parties hereto by notice in writing. The date of receipt
of any such notice shall be deemed to be the date of delivery thereof or, in the
case of notice sent by telecopy, the date of successful transmission thereof
(unless transmission is received after normal business hours, in which case the
date of receipt shall be deemed to be the next business day).
8.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained herein shall,
notwithstanding any investigation by any party, survive the execution of this
Agreement, provided that the liability of a party hereunder for a breach of any
of the representations and warranties contained herein shall terminate one year
after the Closing Date unless prior to such termination date written notice of a
claim for breach of any representation or warranty shall have been given by the
party alleging the breach (which notice must specify the claim made) to the
party alleged to have committed the breach.
8.3 BINDING EFFECT AND ASSIGNMENT
This Agreement shall be binding upon and shall enure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
Neither this Agreement nor any rights
- 45 -
hereunder or under the Amalgamation may be assigned by any party without the
prior written consent of the other parties.
8.4 PUBLIC DISCLOSURE
The parties agree to consult with each other before making any public
disclosure or announcement of or pertaining to this Agreement and that any such
disclosure or announcement shall be mutually satisfactory to all parties;
provided, however, that this Section 8.4 shall not apply in the event any party
hereto is advised by its counsel that certain disclosures or announcements,
which the other parties after reasonable notice will not consent to, are
required to be made by applicable laws, stock exchange rules or policies of
regulatory authorities having jurisdiction.
8.5 EXPENSES
Subject to Section 6.6, each party shall pay its own costs incurred in
connection with the Acquisition and shall not be responsible for any costs,
expenses or fees incurred or paid by the other parties.
8.6 BEST INTERESTS
Notwithstanding the provisions of Section 6.4, it is expressly agreed
and understood that Forest shall not be obliged to complete an Offering which is
deemed imprudent, inadvisable and against Forest's best interests in all the
circumstances by the underwriters under the Offering.
8.7 TIME OF ESSENCE
Time shall be of the essence of this Agreement.
8.8 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. Each party that signs a counterpart shall provide an original of
that counterpart to the other parties hereto.
8.8 FURTHER ASSURANCES
Each of the parties shall make, do and execute, or cause to be made,
done and executed all such further acts, deeds, agreements, transfers,
assurances, instruments or documents as may reasonably be required in order to
implement this Agreement and the Acquisition.
IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first above written.
FOREST OIL CORPORATION ATCOR RESOURCES LTD.
by: /s/ Xxxxxxx X. Xxxx by: /s/ Xxxxxx X. Xxxxxx
-------------------------- --------------------------
by: /s/ Xxxxxx X. Xxxxxxx by: /s/ Xxxxxx X. Xxxxx
-------------------------- --------------------------
ATCO LTD. CANADIAN UTILITIES LIMITED
By: /s/ Xxxxx X. Xxxxxxxx by: /s/ Xxxxx X. Xxxxxxxx
-------------------------- --------------------------
by: /s/ Xxxxxxx X. Xxxxxxx by: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- --------------------------
CANUTILITIES HOLDINGS LTD.
by: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
by: /s/ Xxxxx X. Xxxxxx
--------------------------
SCHEDULE A
AMALGAMATION AGREEMENT
This Amalgamation Agreement made as of the 15th day of December, 1995.
BETWEEN:
ATCOR RESOURCES LTD., a corporation subject to the CANADA
BUSINESS CORPORATIONS ACT (hereinafter referred to as
"ATCOR")
OF THE FIRST PART
- and -
3140334 CANADA LTD., a corporation subject to the CANADA
BUSINESS CORPORATIONS ACT (hereinafter referred to as
"Newco")
OF THE SECOND PART
WHEREAS ATCOR is a publicly traded corporation, the shares of which
are listed on The Toronto Stock Exchange;
AND WHEREAS the parties intend to effect an amalgamation of ATCOR and
Newco;
AND WHEREAS the parties intend to propose such amalgamation and
related transactions to their shareholders pursuant to and in accordance with
the CANADA BUSINESS CORPORATIONS ACT and in accordance with the terms
hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the respective covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, including the recitals, unless there is something
in the subject matter or context inconsistent therewith, the following terms
shall have the following meanings:
(a) "ACQUISITION AGREEMENT" means the agreement dated December 12, 1995
among Forest Oil Corporation, ATCOR, ATCO Ltd, Canadian Utilities
Limited, and CanUtilities Holdings Ltd. to which this Agreement forms
Schedule A;
(b) "ACT" means the CANADA BUSINESS CORPORATIONS ACT, as amended;
(c) "AGREEMENT" means this Amalgamation Agreement;
(d) "AMALCO" means the continuing corporation constituted upon the
Amalgamation;
(e) "AMALGAMATING CORPORATIONS" means Newco and ATCOR;
Page A-37
(f) "AMALGAMATION" means the amalgamation of ATCOR and Newco contemplated
by this Agreement;
(g) "ARTICLES OF AMALGAMATION" means the Articles of Amalgamation set out
in Schedule A hereto;
(h) "ATCOR CLASS A SHARES" means the issued Class A non-voting shares of
ATCOR;
(i) "ATCOR CLASS B SHARES" means the issued Class B common shares of
ATCOR;
(j) "ATCOR SHAREHOLDERS' MEETING" means the special meeting of holders of
ATCOR Shares to be held to consider and, if thought fit, approve the
Amalgamation;
(k) "EFFECTIVE DATE" means the date shown on the Certificate of
Amalgamation giving effect to the Amalgamation;
(l) "NEWCO SHARES" means the issued common shares of Newco;
(m) "SUBSIDIARY" means a subsidiary as defined in the SECURITIES ACT
(Alberta);
(n) "TRANSMITTAL AND ELECTION FORM" means the Transmittal and Election
Form forwarded to holders of ATCOR shares in connection with the ATCOR
Shareholders' Meeting.
1.2 HEADINGS
The division of this Agreement into Articles, Sections, paragraphs and
other subdivisions, the insertion of headings and the provision of a table of
contents are for convenience of reference only and shall not affect the
construction or interpretation hereof.
1.3 INTERPRETATION
In this Agreement, except where otherwise specified:
(a) the terms "this Agreement", "hereof", "herein", "hereunder" and
similar expressions refer, unless otherwise specified, to this
Agreement taken as a whole and not to any particular section,
paragraph or clause;
(b) words importing the singular number or masculine gender shall include
the plural number or the feminine or neuter genders, and vice versa;
(c) all references to Articles and Schedules refer, unless otherwise
specified, to articles of and schedules to this Agreement;
(d) all references to Sections refer, unless otherwise specified, to
sections, paragraphs or clauses of this Agreement and references to
paragraphs or clauses refer to paragraphs in the same section as the
reference or clauses in the same paragraph as the reference; and
(e) words and terms denoting inclusiveness (such as "include" or
"includes" or "including"), whether or not so stated, are not limited
by and do not imply limitation of, their context or the words or
phrases which precede or succeed them.
Page A-38
1.4 GOVERNING LAW AND JURISDICTION
This Agreement and, unless otherwise specified therein, all other
documents and instruments delivered in accordance with this Agreement shall be
governed by and interpreted in accordance with the laws of the Province of
Alberta. The parties irrevocably submit to the non-exclusive jurisdiction of
the courts of the Province of Alberta, without prejudice to the rights of the
parties to take proceedings in any other jurisdictions.
1.5 INVALIDITY, ETC.
Any provision hereof which is prohibited or unenforceable shall be
ineffective only to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof.
1.6 DATE FOR ANY ACTION
In the event that any date on which any action is required to be taken
hereunder by any of the parties hereto is not a business day in the place where
the action is required to be taken, such action shall be required to be taken on
the next succeeding day which is a business day in such place.
1.7 CURRENCY
Unless otherwise stated, all references in this Agreement to sums of
money are expressed in lawful money of Canada.
1.8 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, between
the parties with respect to the subject matter hereof.
1.9 SCHEDULES
The following Schedule forms part of this Agreement:
Schedule A - Articles of Amalgamation
ARTICLE 2
THE AMALGAMATION
2.1 AGREEMENT TO AMALGAMATE
ATCOR and Newco agree to amalgamate pursuant to the Act in accordance
with the terms of this Agreement.
2.2 EFFECT OF AMALGAMATION
On the Effective Date:
(a) ATCOR and Newco shall be amalgamated under the provisions of the Act
and shall continue as one corporation;
(b) the property of each of ATCOR and Newco shall continue to be the
property of Amalco;
(c) Amalco shall continue to be liable for the obligations of each of
ATCOR and Newco; and
Page A-39
(d) the Articles of Amalgamation attached hereto as Schedule A shall be
the articles of Amalco.
2.3 CERTAIN PROVISIONS APPLICABLE TO AMALCO
(a) The name of Amalco shall be "ATCOR Resources Ltd.".
(b) The registered office of Amalco shall be located at the City of
Calgary, in the Province of Alberta.
(c) The authorized share capital of Amalco shall consist of an unlimited
number of common shares (herein the "Common Shares") and an unlimited
number of Class A Special Shares, Class B Special Shares and Class C
Special Shares, the rights, privileges, restrictions and conditions of
which are set forth in Exhibit A to the Articles of Amalgamation.
(d) There shall be no restrictions upon the right to transfer any shares
of Amalco.
(e) The minimum number of directors in Amalco shall be one and the maximum
number of directors shall be ten.
(f) There shall be no restriction on the business which Amalco may carry
on.
(g) The first directors of Amalco shall be the persons whose names and
addresses are set out below, who shall hold office until the first
annual meeting of Amalco, or until their successors are elected or
appointed:
X. X. Xxxxxx, 000, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx;
X. X. Xxxxxxx, 000, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx; and
X. X. Xxxxxxxxxx, 600, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx.
The subsequent directors shall be elected each year thereafter at the
annual meeting of the shareholders of Amalco.
(h) The by-laws of Amalco shall be the by-laws of Newco until repealed,
amended, altered or added to.
2.4 CONVERSION OF SHARE CAPITAL
On the Effective Date, the authorized share capital of Amalco shall be as
set forth in the Articles of Amalgamation. The issued and outstanding shares in
the capital of each of the Amalgamating Corporations (other than any shares of
ATCOR held by a shareholder who is a dissenting shareholder under the Act at the
Effective Date) shall be converted into issued and outstanding Common Shares,
Class A Special Shares, Class B Special Shares or Class C Special Shares of
Amalco on the Effective Date as follows:
(a) each Newco Share shall be converted into one Common Share of Amalco;
(b) subject to (d) hereof, each ATCOR Class A Share shall be converted
into one Class A Special Share of Amalco;
(c) subject to (d) hereof, each ATCOR Class B Share shall be converted
into one Class A Special Share of Amalco; and
(d) where a holder of ATCOR Class A Shares or ATCOR Class B Shares
provides a written request to ATCOR in the Transmittal and Election
Form, such ATCOR Class A Shares or ATCOR Class B Shares, as the case
may be, of such holder as are designated in such written request shall
be converted into Class B Special Shares or Class C Special Shares of
Amalco in the ratio of one
Page A-40
Class B Special Share or Class C Special
Share for each ATCOR Class A Share or ATCOR Class B Share so
converted.
2.5 STATED CAPITAL
Upon the Amalgamation, Amalco shall add the following amounts to the stated
capital accounts of Amalco in respect of the Common Shares, the Class A Special
Shares, Class B Special Shares and Class C Special Shares:
(a) in respect of the Common Shares an amount equal to $1.00 (one dollar);
(b) in respect of the Class A Special Shares an amount equal to $2.65
multiplied by the number of Class A Special Shares issued on the
Effective Date;
(c) in respect of the Class B Special Shares an amount equal to $1.40
multiplied by the number of Class B Special Shares issued on the
Effective Date and
(d) in respect of the Class C Special Shares an amount equal to the lesser
of: (i) $2.15 multiplied by the number of Class C Special Shares
issued on the Effective Date and (ii) the amount by which the
aggregate of the paid-up capital of the ATCOR Class A Shares and the
ATCOR Class B Shares for the purposes of the INCOME TAX ACT (Canada)
immediately prior to the Amalgamation exceeds the aggregate of the
amounts which will be added to the stated capital of the Class A
Special Shares and the Class B Special Shares pursuant to (b) and (c)
of this Section 2.5.
ARTICLE 3
CONDITIONS
3.1 The respective obligations of the parties hereto to complete the
transactions contemplated by this Agreement and to file Articles of Amalgamation
shall be subject to satisfaction, on or before the Effective Date, of the
following conditions:
(a) the Amalgamation and this Agreement, with or without amendment, shall
have been approved at the ATCOR Shareholders' Meeting, or any
adjournment thereof, in accordance with the Act and shall have
otherwise been approved by the requisite majority of persons entitled
or required to vote thereon as determined by the Act;
(b) there shall not be in force any order or decree restraining or
enjoining the consummation of the transactions contemplated by this
Agreement;
(c) the Acquisition Agreement shall not have been terminated pursuant to
Article 7 of the Acquisition Agreement.
3.2 MERGER OF CONDITIONS
The conditions set out in Section 3.1 shall be conclusively deemed to
have been satisfied, waived or released on the filing of Articles of
Amalgamation under the Act.
Page A-41
ARTICLE 4
AMENDMENT AND TERMINATION
4.1 AMENDMENT
This Agreement may, at any time and from time to time before or after
the holding of the ATCOR Shareholders' Meeting but not later than the Effective
Date, be amended by written agreement of the parties hereto without further
notice to or authorization on the part of the holders of ATCOR shares or Newco
shares. Without limiting the generality of the foregoing, any such amendment
may:
(a) change the time for performance of any of the obligations or acts of
the parties hereto;
(b) waive any inaccuracies or modify any of the covenants contained herein
or in any document to be delivered pursuant hereto; or
(c) waive compliance with or modify any of the covenants herein contained
or waive or modify performance of any of the obligations of the
parties hereto;
provided that, notwithstanding the foregoing, the consideration to be received
by holders of ATCOR shares shall not be decreased without the approval of the
holders of ATCOR shares given in the same manner as required for the approval of
the Amalgamation.
4.2 TERMINATION
This Agreement may, at any time before or after the holding of the
ATCOR Shareholders' Meeting but prior to the Effective Date, be terminated by
agreement of the parties without further action on the part of the holders of
ATCOR shares or Newco shares.
ARTICLE 5
GENERAL
5.1 ASSIGNMENT
No party may assign its rights or obligations under this Agreement or
the Amalgamation without the prior written consent of the other parties hereto.
5.2 BINDING EFFECT
This Agreement shall be binding upon and shall enure to the benefit of
the parties hereto and their respective successors and permitted assigns.
5.3 WAIVER
Any waiver or release of any of the provisions of this Agreement, to
be effective, must be in writing executed by the parties granting the same.
Waivers may only be granted upon compliance with the terms governing amendments
set forth in Section 7.1 of the Acquisition Agreement, mutatis mutandis.
Page A-42
5.4 COUNTERPARTS
This Agreement may be executed in one or more counterparts each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
ATCOR RESOURCES LTD.
By: "Xxxxxx X. Xxxxxx"
By: "Xxxxxx X. Xxxxx"
3140334 CANADA LTD.
By: "Xxxxxxx X. Xxxxxxxxxx"
By: "Xxxxxx X. Xxxxxx"
Page A-43
SCHEDULE A
ARTICLES OF AMALGAMATION
NAME OF CORPORATION: ATCOR Resources Ltd.
CORPORATE ACCESS NO.:
THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS
AUTHORIZED TO ISSUE:
The attached Exhibit A is incorporated into and forms part of this form.
RESTRICTIONS IF ANY ON SHARE TRANSFERS:
None.
NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS:
The Corporation shall have a minimum of one and a maximum of ten directors,
with the number of directors within such range to be set from time to time
by ordinary resolution of the shareholders, or in the absence of such
resolution by resolution of the directors.
RESTRICTIONS IF ANY ON BUSINESS THE CORPORATION MAY CARRY ON:
There shall be no restrictions as to the business which the Corporation may
carry on.
OTHER PROVISIONS IF ANY:
Subject to the CANADA BUSINESS CORPORATIONS ACT, the directors may, between
annual general meetings of shareholders, appoint one or more additional
directors of the corporation to serve until the next annual general meeting
of shareholders.
NAME OF AMALGAMATING CORPORATIONS CORPORATE ACCESS NO.
ATCOR Resources Ltd. 266455-1
3140334 Canada Ltd. 314033-4
Page A-44
EXHIBIT A
TO THE
ARTICLES OF AMALGAMATION
OF ATCOR RESOURCES LTD.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS AND INTERPRETATIONS: In these provisions, unless the context
otherwise requires, the following words and expressions shall have the meanings
set forth below:
"ACT" means the CANADA BUSINESS CORPORATIONS ACT and the regulations
thereunder;
"ACQUISITION" means the acquisition by way of purchase of all of the issued
and outstanding Common Shares by any Person following the Amalgamation;
"AMALGAMATION" means the amalgamation of ATCOR Resources Ltd. and 3140334
Canada Ltd. to form the Corporation;
"ATCOR SHARES" means the Class A non-voting shares and Class B common
shares of ATCOR Resources Ltd.;
"BUSINESS DAY" means any day other than a Saturday, Sunday or banking
holiday in Calgary, Alberta;
"CLASS A SPECIAL SHARES" means the Class A Special Shares that the
Corporation is authorized to issue;
"CLASS B SPECIAL SHARES" means the Class B Special Shares that the
Corporation is authorized to issue;
"CLASS C SPECIAL SHARES" means the Class C Special Shares that the
Corporation is authorized to issue;
"COMMON SHARES" means the common shares that the Corporation is authorized
to issue;
"DIRECTORS" means, at any particular time, the directors of the Corporation
at such time;
"DISSENTING SHAREHOLDER" means a registered holder of issued and
outstanding shares of ATCOR Resources Ltd. who has exercised his right to
dissent in compliance with Section 190 of the Act;
"PERSON" shall be broadly interpreted and includes an individual, body
corporate, sole proprietorship, partnership, unincorporated association,
unincorporated organization, association, organization, syndicate, joint
venture, trust, trustee, the Crown, any government or any ministry, agency,
department, board, commission, branch, office or tribunal of any government
howsoever designated or constituted or any other entity recognized by law;
"REDEMPTION PRICE" means, with respect to each Class A Special Share, Class
B Special Share or Class C Special Share, $4.88 (CDN);
"REMAINING PROPERTY" means the property and assets of the Corporation
available for distribution to the shareholders of the Corporation on a
liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or any other distribution of the property and
assets of the Corporation among its shareholders for the purpose of winding
up its affairs; and
Page A-45
"TRANSMITTAL AND ELECTION FORM" means the transmittal and election form
sent to a holder of ATCOR Shares in connection with the Amalgamation, duly
completed and executed in accordance with the instructions set forth
therein.
1.2 REFERENCES: All references in these provisions to subsections, paragraphs
and subparagraphs, unless otherwise specified, are to subsections, paragraphs
and subparagraphs of these provisions.
1.3 STATUTORY REFERENCES: Unless otherwise stated, any reference in these
provisions to any act or statute or section thereof shall be deemed to be a
reference to such act or statute or section, as amended, re-enacted or replaced
from time to time.
1.4 HEADINGS: The division of these provisions into sections, subsections,
paragraphs, subparagraphs and clauses and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of these provisions.
1.5 NUMBER AND GENDER: Words importing the singular shall include the plural
and vice-versa and words importing gender shall include all genders, unless the
context otherwise requires.
1.6 CURRENCY: In these provisions, all dollar amounts are stated in Canadian
currency.
1.7 HOLDER: For the purpose of these provisions, unless otherwise provided
herein, any reference to a holder of shares of the Corporation shall be a
reference to the registered owner of such share at the relevant time.
1.8 NOTICE: Any notice, share certificate, cheque, bank draft or other
document required or permitted to be given, deposited or delivered by the
Corporation to or with any holder of shares of the Corporation pursuant to these
provisions shall, except as otherwise specifically provided in these provisions,
be sent by first class mail, postage prepaid, or delivered to such holder, at
its last address shown in the books of the Corporation. Any notice or other
document given, deposited or delivered as aforesaid shall be deemed to be given,
deposited or delivered, as the case may be, on the date upon which it is mailed
or delivered.
ARTICLE 2
COMMON SHARES
The Common Shares shall have attached to them the following rights,
privileges, restrictions and conditions:
2.1 DIVIDENDS
2.1.1 DIVIDENDS: The holders of the Common Shares shall be entitled,
subject to the rights, privileges, restrictions and conditions
attaching to the Class A Special Shares, Class B Special Shares
and the Class C Special Shares to receive any dividend declared
by the Directors on the Common Shares from time to time.
2.2 LIQUIDATION, DISSOLUTION OR WINDING-UP
2.2.1 LIQUIDATION, DISSOLUTION OR WINDING-UP: In the event of a
distribution of the property and assets of the Corporation among
its shareholders in connection with the liquidation, dissolution
or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the property and assets
of the Corporation among its shareholders for the purpose of
winding up its affairs, the holders of the Common Shares shall be
entitled, subject to the rights, privileges, restrictions and
conditions attaching to the Class A Special Shares, Class B
Special Shares and Class C Special Shares to receive the
Remaining Property.
Page A-46
2.3 VOTING RIGHTS
2.3.1 VOTING RIGHTS: Each holder of Common Shares shall be entitled to
receive notice of, and to attend, all meetings of shareholders of
the Corporation and to vote at such meetings, except meetings at
which only holders of a specified class of shares (other than
Common Shares) are entitled to vote. At all meetings at which
the holders of Common Shares are entitled to vote, each holder of
Common Shares shall be entitled to one vote in respect of each
Common Share held by such holder.
ARTICLE 3
CLASS A SPECIAL SHARES
The Class A Special Shares shall have attached to them the following
rights, privileges, restrictions and conditions:
3.1 PRIORITIES
3.1.1 DISTRIBUTIONS OF THE REMAINING PROPERTY:
(a) The Class A Special Shares shall rank prior to the Common
Shares, Class B Special Shares and Class C Special Shares
with respect to distributions of the Remaining Property; and
(b) For so long as any of the Class A Special Shares are
outstanding, the Corporation shall not make any capital
distribution in respect of, or redeem, repurchase or
otherwise acquire, any Common Shares or Class C Special
Shares.
3.1.2 DIVIDENDS: For so long as any of the Class A Special Shares are
outstanding, the Corporation shall not pay or set aside for
payment, any dividends on the Common Shares.
3.2 DIVIDENDS
3.2.1 NON-ENTITLEMENT: The holders of Class A Special Shares, as such,
shall not be entitled to receive any dividends.
3.3 LIQUIDATION, DISSOLUTION OR WINDING-UP
3.3.1 DISTRIBUTION OF REMAINING PROPERTY: In the event of a
distribution of the property and assets of the Corporation among
its shareholders in connection with the liquidation, dissolution
or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the property and assets
of the Corporation among its shareholders for the purpose of
winding up its affairs, a holder of Class A Special Shares shall
be entitled to receive out of the Remaining Property, before any
amount is paid or distributed to the holders of the Common
Shares, Class B Special Shares or Class C Special Shares, an
amount equal to the aggregate Redemption Price of the Class A
Special Shares held by such holder on the date of distribution.
After payment to a holder of Class A Special Shares of the
amounts payable to such holder, as such, under this paragraph
3.3.1, such holder shall not be entitled to share in any further
distribution of Remaining Property.
3.3.2 METHOD OF PAYMENT: The amount payable under paragraph 3.3.1 in
respect of any Class A Special Share held by a particular holder
may be satisfied by the delivery of a cheque of the Corporation
and the provisions of paragraph 3.5.3 shall apply MUTATIS
MUTANDIS to such payment.
Page A-47
3.4 REDEMPTION BY THE HOLDER
3.4.1 RIGHT/OBLIGATION TO REDEEM: The holders of Class A Special Shares
shall be entitled to require the Corporation to redeem at any
time, upon giving notice as hereinafter provided, all or any
number of the Class A Special Shares registered in the name of
such holders on the books of the Corporation. The holders of
Class A Special Shares exercising their option to have the
Corporation redeem, shall give notice to the Corporation setting
out the date on which the Corporation is to redeem the shares,
which date shall be not less than 10 days from the date of the
notice, and if the holders desire to have less than all the Class
A Special Shares registered in their names redeemed by the
Corporation, the number of the shares of the holders to be
redeemed. The date on which the redemption at the option of the
holders is to occur shall be the option redemption date. The
holders of any Class A Special Shares may, with the consent of
the Corporation, revoke such notice prior to the option
redemption date. Upon delivery to the Corporation of a share
certificate or certificates representing the Class A Special
Shares which the holders desire the Corporation to redeem (if any
such share certificates have been issued by the Corporation), the
Corporation shall on the option redemption date, to the extent
permitted by applicable law, redeem such Class A Special Shares
by paying to the holders the amount of the Redemption Price.
Upon payment of the Redemption Price of the Class A Special
Shares so redeemed by the Corporation, the holder thereof shall
not be entitled to exercise any of the rights of shareholders in
respect thereof.
3.5 REDEMPTION BY THE CORPORATION
3.5.1 RIGHT/OBLIGATION TO REDEEM: The Corporation shall, immediately
following an Acquisition, redeem all of the then outstanding
Class A Special Shares at the Redemption Price. The Corporation
shall not be required to give any notice of redemption in
connection therewith. If the redemption by the Corporation of
all of the then outstanding Class A Special Shares would be
contrary to applicable law, the Corporation shall redeem the
maximum number of Class A Special Shares (rounded to the next
lower multiple of 100 shares) which the Corporation is then
permitted to redeem, such redemption to be made on a pro rata
basis (disregarding fractions of shares) among all registered
holders of Class A Special Shares in accordance with the number
of shares held by each of them, respectively. From time to time
thereafter, as soon as permitted by applicable law, the
Corporation shall redeem the maximum number of then outstanding
Class A Special Shares as would not be contrary to applicable
law, MUTATIS MUTANDIS, in accordance with the foregoing
provisions of this subsection.
3.5.2 REDEMPTION AND PAYMENT: Upon the redemption of Class A Special
Shares, provided that a holder of any such Class A Special Shares
shall have presented and surrendered to the Corporation the
Transmittal and Election Form and the certificates representing
all ATCOR Shares held by such holder which were converted into
Class A Special Shares, the Corporation shall pay or cause to be
paid to such holder the Redemption Price for each Class A Special
Share so redeemed. Without limitation, the Corporation shall be
deemed to have paid to such holder the Redemption Price for each
Class A Special Share so redeemed when a cheque representing such
amount has been mailed to the address of such holder as it
appeared on the applicable securities register of ATCOR when the
Amalgamation became effective or as it appears in the Transmittal
and Election Form, has been delivered to such holder, or has been
set aside for pick up in accordance with the delivery
instructions in the Transmittal and Election Form. The holder of
Class A Special Shares who has not so presented and surrendered
the certificates representing all ATCOR Shares held by such
holder which were so converted shall be entitled to receive, and
the Corporation shall pay or cause to be paid to such holder, the
Redemption Price for each Class A Special Share redeemed only
upon presentation and surrender by such holder to the Corporation
at its registered office of the certificates representing all
ATCOR Shares of such holder which have been converted into Class
A Special Shares. On and after the redemption of any such Class
A Special Shares, the holder thereof shall not be entitled to
exercise any of the rights of shareholders in respect thereof,
other than the right to receive payment, without interest, of the
Redemption Price as aforesaid or as provided in subsection 3.5.3
below, unless payment of the aforesaid Redemption Price shall not
be made in accordance with the foregoing provisions or as
provided in subsection 3.5.3 below, in which case the rights of
such shareholders shall remain unaffected.
Page A-48
3.5.3 RIGHT TO DEPOSIT REDEMPTION PRICE: The Corporation shall have the
right at any time in respect of a redemption of the Class A
Special Shares to deposit the Redemption Price for such of the
redeemed Class A Special Shares registered in the names of
shareholders who have not at the date of such deposit presented
and surrendered to the Corporation certificates representing all
of their ATCOR Shares which were so converted into Class A
Special Shares in a special account with a Canadian chartered
bank or trust company to be paid without interest to or to the
order of the respective holders of such Class A Special Shares
upon presentation and surrender by them respectively, to the
Corporation of their share certificates to be so presented and
surrendered and the Transmittal and Election Form. Any interest
allowed on any such deposit shall belong to the Corporation.
3.5.4 UNCLAIMED MONIES: Redemption monies that are represented by a
cheque which has not been presented to the Corporation's bankers
for payment or that otherwise remain unclaimed (including monies
held on deposit in a special account as provided for in
subsection 3.5.3 above) for a period of six years shall be
forfeited to the Corporation.
3.5.5 DISSENT: Notwithstanding anything to the contrary in the
foregoing, in the event a Dissenting Shareholder in respect of
ATCOR Shares has been paid the fair value of the ATCOR Shares
held by such Shareholder immediately prior to the Amalgamation
pursuant to Section 190 of the Act, such Dissenting Shareholder
shall have no right to receive the redemption price for the Class
A Special Shares into which such ATCOR Shares were converted
notwithstanding that the same have been redeemed, shall not be
entitled to exercise any of the rights of shareholders in respect
thereof, and the redemption monies for such Class A Special
Shares held on deposit in a special account as provided for in
subsection 3.5.3 above shall be forfeited to the Corporation.
3.5.6 REPLACEMENT SHARE CERTIFICATE: If less than all of a holder's
Class A Special Shares represented by any share certificate or
share certificates are redeemed pursuant to this subsection 3.5,
a new share certificate representing the balance of the Class A
Special Shares held by such holder shall be issued to such
holder, at the expense of the Corporation, on the later of the
applicable redemption date and the date of receipt by the
Corporation of the share certificate or share certificates
representing the shares to be redeemed.
3.6 VOTING RIGHTS
3.6.1 VOTING RIGHTS: Except as otherwise provided in the Act, the
Class A Special Shares shall be non-voting shares, and a holder
of Class A Special Shares, as such, shall not be entitled to
receive notice of, or to attend, meetings of shareholders of the
Corporation, and shall not be entitled to vote at such meetings.
ARTICLE 4
CLASS B SPECIAL SHARES
The Class B Special Shares shall have attached to them the following rights,
privileges, restrictions and conditions:
4.1 PRIORITIES
4.1.1 DISTRIBUTIONS OF THE REMAINING PROPERTY:
(a) The Class B Special Shares shall rank prior to the Common
Shares and the Class C Special Shares with respect to
distributions of the Remaining Property; and
(b) For so long as any of the Class B Special Shares are
outstanding, the Corporation shall not make any capital
distribution in respect of, or redeem, repurchase or
otherwise acquire, any Common Shares or Class C Special
Shares.
Page A-49
4.1.2 DIVIDENDS: For so long as any of the Class B Special Shares are
outstanding, the Corporation shall not pay or set aside for
payment, any dividends on the Common Shares.
4.2 DIVIDENDS
4.2.1 NON-ENTITLEMENT: The holders of Class B Special Shares, as such,
shall not be entitled to receive any dividends.
4.3 LIQUIDATION, DISSOLUTION OR WINDING-UP
4.3.1 DISTRIBUTION OF REMAINING PROPERTY: In the event of a
distribution of the property and assets of the Corporation among
its shareholders in connection with the liquidation, dissolution
or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the property and assets
of the Corporation among its shareholders for the purpose of
winding up its affairs, a holder of Class B Special Shares shall
be entitled to receive out of the Remaining Property, before any
amount is paid or distributed to the holders of the Common Shares
or Class C Special Shares, an amount equal to the aggregate Class
B Redemption Price of the Class B Special Shares held by such
holder on the date of distribution. After payment to a holder of
Class B Special Shares of the amounts payable to such holder, as
such, under this paragraph 4.3.1, such holder shall not be
entitled to share in any further distribution of Remaining
Property.
4.3.2 METHOD OF PAYMENT: The amount payable under paragraph 4.3.1 in
respect of any Class B Special Share held by a particular holder
may be satisfied by the delivery of a cheque of the Corporation
and the provisions of paragraph 4.5.3 shall apply MUTATIS
MUTANDIS to such payment.
4.4 REDEMPTION BY THE HOLDER
4.4.1 RIGHT/OBLIGATION TO REDEEM: The holders of Class B Special Shares
shall be entitled to require the Corporation to redeem at any
time, upon giving notice as hereinafter provided, all or any
number of the Class B Special Shares registered in the name of
such holders on the books of the Corporation. The holders of
Class B Special Shares exercising their option to have the
Corporation redeem, shall give notice to the Corporation setting
out the date on which the Corporation is to redeem the shares,
which date shall be not less than 10 days from the date of the
notice, and if the holders desire to have less than all the Class
B Special Shares registered in their names redeemed by the
Corporation, the number of the shares of the holders to be
redeemed. The date on which the redemption at the option of the
holders is to occur shall be the option redemption date. The
holders of any Class B Special Shares may, with the consent of
the Corporation, revoke such notice prior to the option
redemption date. Upon delivery to the Corporation of a share
certificate or certificates representing the Class B Special
Shares which the holders desire the Corporation to redeem (if any
such share certificates have been issued by the Corporation), the
Corporation shall on the option redemption date, to the extent
permitted by applicable law, redeem such Class B Special Shares
by paying to the holders the amount of the Redemption Price.
Upon payment of the Redemption Price of the Class B Special
Shares so redeemed by the Corporation, the holder thereof shall
not be entitled to exercise any of the rights of shareholders in
respect thereof.
4.5 REDEMPTION BY THE CORPORATION
4.5.1 RIGHT/OBLIGATION TO REDEEM: The Corporation shall, immediately
following an Acquisition, redeem all of the then outstanding
Class B Special Shares at the Redemption Price. The Corporation
shall not be required to give any notice of redemption in
connection therewith. If the redemption by the Corporation of
all of the then outstanding Class B Special Shares would be
contrary to applicable law, the Corporation shall redeem the
maximum number of Class B Special Shares (rounded to the next
lower multiple of 100 shares) which the Corporation is then
permitted to redeem, such redemption to be made on a pro rata
basis (disregarding fractions of shares) among all registered
holders of Class B Special Shares in accordance
Page A-50
with the number of shares held by each of them, respectively.
From time to time thereafter, as soon as permitted by applicable
law, the Corporation shall redeem the maximum number of then
outstanding Class B Special Shares as would not be contrary to
applicable law, MUTATIS MUTANDIS, in accordance with the
foregoing provisions of this subsection.
4.5.2 REDEMPTION AND PAYMENT: Upon the redemption of Class B Special
Shares, provided that a holder of any such Class B Special Shares
shall have presented and surrendered to the Corporation the
Transmittal and Election Form and the certificates representing
all ATCOR Shares held by such holder which were converted into
Class B Special Shares, the Corporation shall pay or cause to be
paid to such holder the Redemption Price for each Class B Special
Share so redeemed. Without limitation, the Corporation shall be
deemed to have paid to such holder the Redemption Price for each
Class B Special Share so redeemed when a cheque representing such
amount has been mailed to the address of such holder as it
appeared on the applicable securities register of ATCOR when the
Amalgamation became effective or as it appears in the Transmittal
and Election Form, has been delivered to such holder, or has been
set aside for pick up in accordance with the delivery
instructions in the Transmittal and Election Form. The holder of
Class B Special Shares who has not so presented and surrendered
the certificates representing all ATCOR Shares held by such
holder which were so converted shall be entitled to receive, and
the Corporation shall pay or cause to be paid to such holder, the
Redemption Price for each Class B Special Share redeemed only
upon presentation and surrender by such holder to the Corporation
at its registered office of the certificates representing all
ATCOR Shares of such holder which have been converted into Class
B Special Shares. On and after the redemption of any such Class
B Special Shares, the holder thereof shall not be entitled to
exercise any of the rights of shareholders in respect thereof,
other than the right to receive payment, without interest, of the
Redemption Price as aforesaid or as provided in subsection 4.5.3
below, unless payment of the aforesaid Redemption Price shall not
be made in accordance with the foregoing provisions or as
provided in subsection 4.5.3 below, in which case the rights of
such shareholders shall remain unaffected.
4.5.3 RIGHT TO DEPOSIT REDEMPTION PRICE: The Corporation shall have the
right at any time in respect of a redemption of the Class B
Special Shares to deposit the Redemption Price for such of the
redeemed Class B Special Shares registered in the names of
shareholders who have not at the date of such deposit presented
and surrendered to the Corporation certificates representing all
of their ATCOR Shares which were so converted into Class B
Special Shares in a special account with a Canadian chartered
bank or trust company to be paid without interest to or to the
order of the respective holders of such Class B Special Shares
upon presentation and surrender by them respectively, to the
Corporation of their share certificates to be so presented and
surrendered. Any interest allowed on any such deposit shall
belong to the Corporation.
4.5.4 UNCLAIMED MONIES: Redemption monies that are represented by a
cheque which has not been presented to the Corporation's bankers
for payment or that otherwise remain unclaimed (including monies
held on deposit in a special account as provided for in
subsection 4.5.3 above) for a period of six years shall be
forfeited to the Corporation.
4.5.5 DISSENT: Notwithstanding anything to the contrary in the
foregoing, in the event a Dissenting Shareholder in respect of
ATCOR Shares has been paid the fair value of the ATCOR Shares
held by such Shareholder immediately prior to the Amalgamation
pursuant to Section 190 of the Act, such Dissenting Shareholder
shall have no right to receive the redemption price for the Class
B Special Shares into which such ATCOR Shares were converted
notwithstanding that the same have been redeemed, shall not be
entitled to exercise any of the rights of shareholders in respect
thereof, and the redemption monies for such Class B Special
Shares held on deposit in a special account as provided for in
subsection 4.5.3 above shall be forfeited to the Corporation.
4.5.6 REPLACEMENT SHARE CERTIFICATE: If less than all of a holder's
Class B Special Shares represented by any share certificate or
share certificates are redeemed pursuant to this subsection 4.5,
a new share certificate representing the balance of the Class B
Special Shares held by such holder shall be issued to such
holder,
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at the expense of the Corporation, on the later of the
applicable redemption date and the date of receipt by the
Corporation of the share certificate or share certificates
representing the shares to be redeemed.
4.6 VOTING RIGHTS
4.6.1 VOTING RIGHTS: Except as otherwise provided in the Act, the
Class B Special Shares shall be non-voting shares, and a holder
of Class B Special Shares, as such, shall not be entitled to
receive notice of, or to attend, meetings of shareholders of the
Corporation, and shall not be entitled to vote at such meetings.
ARTICLE 5
CLASS C SPECIAL SHARES
The Class C Special Shares shall have attached to them the following rights,
privileges, restrictions and conditions:
5.1 PRIORITIES
5.1.1 DISTRIBUTIONS OF THE REMAINING PROPERTY:
(a) The Class C Special Shares shall rank prior to the Common
Shares with respect to distributions of the Remaining
Property; and
(b) For so long as any of the Class C Special Shares are
outstanding, the Corporation shall not make any capital
distribution in respect of, or redeem, repurchase or
otherwise acquire, any Common Shares.
5.1.2 DIVIDENDS: For so long as any of the Class C Special Shares are
outstanding, the Corporation shall not pay or set aside for
payment, any dividends on the Common Shares.
5.2 DIVIDENDS
5.2.1 NON-ENTITLEMENT: The holders of Class C Special Shares, as such,
shall not be entitled to receive any dividends.
5.3 LIQUIDATION, DISSOLUTION OR WINDING-UP
5.3.1 DISTRIBUTION OF REMAINING PROPERTY: In the event of a
distribution of the property and assets of the Corporation among
its shareholders in connection with the liquidation, dissolution
or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the property and assets
of the Corporation among its shareholders for the purpose of
winding up its affairs, a holder of Class C Special Shares shall
be entitled to receive out of the Remaining Property, before any
amount is paid or distributed to the holders of the Common
Shares, an amount equal to the aggregate Redemption Price of the
Class C Special Shares held by such holder on the date of
distribution. After payment to a holder of Class C Special
Shares of the amounts payable to such holder, as such, under this
paragraph 5.3.1, such holder shall not be entitled to share in
any further distribution of Remaining Property.
5.3.2 METHOD OF PAYMENT: The amount payable under paragraph 5.3.1 in
respect of any Class C Special Share held by a particular holder
may be satisfied by the delivery of a cheque of the Corporation
and the provisions of paragraph 5.5.3 shall apply MUTATIS
MUTANDIS to such payment.
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5.4 REDEMPTION BY THE HOLDER
5.4.1 RIGHT/OBLIGATION TO REDEEM: The holders of Class C Special Shares
shall be entitled to require the Corporation to redeem at any
time, upon giving notice as hereinafter provided, all or any
number of the Class C Special Shares registered in the name of
such holders on the books of the Corporation. The holders of
Class C Special Shares exercising their option to have the
Corporation redeem, shall give notice to the Corporation setting
out the date on which the Corporation is to redeem the shares,
which date shall be not less than 10 days from the date of the
notice, and if the holders desire to have less than all the Class
C Special Shares registered in their names redeemed by the
Corporation, the number of the shares of the holders to be
redeemed. The date on which the redemption at the option of the
holders is to occur shall be the option redemption date. The
holders of any Class C Special Shares may, with the consent of
the Corporation, revoke such notice prior to the option
redemption date. Upon delivery to the Corporation of a share
certificate or certificates representing the Class C Special
Shares which the holders desire the Corporation to redeem (if any
such share certificates have been issued by the Corporation), the
Corporation shall on the option redemption date, to the extent
permitted by applicable law, redeem such Class C Special Shares
by paying to the holders the amount of the Redemption Price.
Upon payment of the Redemption Price of the Class C Special
Shares so redeemed by the Corporation, the holder thereof shall
not be entitled to exercise any of the rights of shareholders in
respect thereof.
5.5 REDEMPTION BY THE CORPORATION
5.5.1 RIGHT/OBLIGATION TO REDEEM: The Corporation may, following an
Acquisition, redeem all of the then outstanding Class C Special
Shares at the Redemption Price. The Corporation shall be
required to give not less than 5 days and not more than 30 days
notice in writing of the intention of the Corporation to redeem
the Class C Special Shares. Such notice shall be given by
posting the same in a postage paid envelope addressed to each
holder at the last address of such holder as it appears on the
applicable securities register of ATCOR when the Amalgamation
became effective or as it appears on the Transmittal and Election
Form. If the redemption by the Corporation of all of the then
outstanding Class C Special Shares would be contrary to
applicable law, the Corporation shall redeem the maximum number
of Class C Special Shares (rounded to the next lower multiple of
100 shares) which the Corporation is then permitted to redeem,
such redemption to be made on a pro rata basis (disregarding
fractions of shares) among all registered holders of Class C
Special Shares in accordance with the number of shares held by
each of them, respectively. From time to time thereafter, as
soon as permitted by applicable law, the Corporation shall redeem
the maximum number of then outstanding Class C Special Shares as
would not be contrary to applicable law, MUTATIS MUTANDIS, in
accordance with the foregoing provisions of this subsection.
5.5.2 REDEMPTION AND PAYMENT: Upon the redemption of Class C Special
Shares, provided that a holder of any such Class C Special Shares
shall have, prior to the date fixed for redemption, presented and
surrendered to the Corporation the certificates representing all
ATCOR Shares held by such holder which were converted into Class
C Special Shares, the Corporation shall pay or cause to be paid
to such holder the Redemption Price for each Class C Special
Share so redeemed. Without limitation, the Corporation shall be
deemed to have paid to such holder the Redemption Price for each
Class C Special Share so redeemed when a cheque representing such
amount has been mailed to the address of such holder as it
appeared on the applicable securities register of ATCOR when the
Amalgamation became effective or as it appears in the Transmittal
and Election Form, has been delivered to such holder, or has been
set aside for pick up in accordance with the delivery
instructions in the Transmittal and Election Form. The holder of
Class C Special Shares who has not so presented and surrendered
the certificates representing all ATCOR Shares held by such
holder which were so converted shall be entitled to receive, and
the Corporation shall pay or cause to be paid to such holder, the
Redemption Price for each Class C Special Share redeemed only
upon presentation and surrender by such holder to the Corporation
at its registered office of the certificates representing all
ATCOR Shares of such holder which have been converted into Class
C Special Shares. On and after the redemption of any such Class
C Special Shares, the holder thereof shall not be entitled to
exercise any of the rights of shareholders in respect thereof,
other than the
Page A-53
right to receive payment, without interest, of the Redemption
Price as aforesaid or as provided in subsection 5.5.3 below,
unless payment of the aforesaid Redemption Price shall not
be made in accordance with the foregoing provisions or as
provided in subsection 5.5.3 below, in which case the rights
of such shareholders shall remain unaffected.
5.5.3 RIGHT TO DEPOSIT REDEMPTION PRICE: The Corporation shall have the
right at any time in respect of a redemption of the Class C
Special Shares to deposit the Redemption Price for such of the
redeemed Class C Special Shares registered in the names of
shareholders (including, without limitation, Dissenting
Shareholders in respect of ATCOR Shares) who have not at the date
of such deposit presented and surrendered to the Corporation
certificates representing all of their ATCOR Shares which were so
converted into Class C Special Shares in a special account with a
Canadian chartered bank or trust company to be paid without
interest to or to the order of the respective holders of such
Class C Special Shares upon presentation and surrender by them
respectively, to the Corporation of their share certificates to
be so presented and surrendered. Any interest allowed on any
such deposit shall belong to the Corporation.
5.5.4 UNCLAIMED MONIES: Redemption monies that are represented by a
cheque which has not been presented to the Corporation's bankers
for payment or that otherwise remain unclaimed (including monies
held on deposit in a special account as provided for in
subsection 5.5.3 above) for a period of six years shall be
forfeited to the Corporation.
5.5.5 DISSENT: Notwithstanding anything to the contrary in the
foregoing, in the event a Dissenting Shareholder in respect of
ATCOR Shares has been paid the fair value of the ATCOR Shares
held by such Shareholder immediately prior to the Amalgamation
pursuant to Section 190 of the Act, such Dissenting Shareholder
shall have no right to receive the redemption price for the Class
C Special Shares into which such ATCOR Shares were converted
notwithstanding that the same have been redeemed, shall not be
entitled to exercise any of the rights of shareholders in respect
thereof, and the redemption monies for such Class C Special
Shares held on deposit in a special account as provided for in
subsection 5.5.3 above shall be forfeited to the Corporation.
5.5.6 REPLACEMENT SHARE CERTIFICATE: If less than all of a holder's
Class C Special Shares represented by any share certificate or
share certificates are redeemed pursuant to this subsection 5.5,
a new share certificate representing the balance of the Class C
Special Shares held by such holder shall be issued to such
holder, at the expense of the Corporation, on the later of the
applicable redemption date and the date of receipt by the
Corporation of the share certificate or share certificates
representing the shares to be redeemed.
5.6 VOTING RIGHTS
5.6.1 VOTING RIGHTS: Except as otherwise provided in the Act, the
Class C Special Shares shall be non-voting shares, and a holder
of Class C Special Shares, as such, shall not be entitled to
receive notice of, or to attend, meetings of shareholders of the
Corporation, and shall not be entitled to vote at such meetings.
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