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EXHIBIT 4.23
AMVESCAP PLC
and
TRIMARK FINANCIAL CORPORATION
--------------------
AMENDED AND RESTATED
MERGER AGREEMENT
May 9, 2000
--------------------
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TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
Section 1.1 Definitions................................................................................1
Section 1.2 Interpretation Not Affected by Headings, etc..............................................10
Section 1.3 Currency..................................................................................10
Section 1.4 Number, etc...............................................................................10
Section 1.5 Date For Any Action.......................................................................11
Section 1.6 Entire Agreement..........................................................................11
Section 1.7 Schedules.................................................................................11
Section 1.8 Accounting Matters........................................................................11
Section 1.9 Knowledge.................................................................................11
ARTICLE 2
THE ARRANGEMENT
Section 2.1 Implementation Steps by Trimark...........................................................12
Section 2.2 Implementation Steps by AMVESCAP..........................................................13
Section 2.3 Interim Order.............................................................................14
Section 2.4 Articles of Arrangement...................................................................15
Section 2.5 Trimark Circular..........................................................................15
Section 2.6 AMVESCAP Circular.........................................................................15
Section 2.7 Securities Compliance.....................................................................15
Section 2.8 Preparation of Filings, etc...............................................................16
Section 2.9 Holdco Alternative........................................................................18
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Trimark.................................................18
Section 3.2 Representations and Warranties of AMVESCAP................................................18
Section 3.3 Survival..................................................................................18
ARTICLE 4
COVENANTS
Section 4.1 Retention of Goodwill.....................................................................18
Section 4.2 Treatment of Options, etc.................................................................19
Section 4.3 Covenants of Trimark......................................................................20
Section 4.4 Covenants of AMVESCAP.....................................................................25
Section 4.5 Covenants Regarding Non-Solicitation......................................................28
Section 4.6 Notice by Trimark of Superior Proposal Determination......................................30
Section 4.7 Access to Information.....................................................................31
(i)
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Section 4.8 Closing Matters...........................................................................32
Section 4.9 Indemnification...........................................................................32
ARTICLE 5
CONDITIONS
Section 5.1 Mutual Conditions Precedent...............................................................32
Section 5.2 Additional Conditions Precedent to the Obligations of AMVESCAP............................34
Section 5.3 Additional Conditions Precedent to the Obligations of Trimark.............................35
Section 5.4 Notice and Cure Provisions................................................................36
Section 5.5 Satisfaction of Conditions................................................................37
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1 Amendment.................................................................................37
Section 6.2 Mutual Understanding Regarding Amendments.................................................38
Section 6.3 Termination...............................................................................38
Section 6.4 Break and Other Fees......................................................................40
Section 6.5 Effect of Break Fee Payment...............................................................41
Section 6.6 Remedies..................................................................................41
ARTICLE 7
GENERAL
Section 7.1 Notices...................................................................................42
Section 7.2 Assignment................................................................................43
Section 7.3 Binding Effect............................................................................43
Section 7.4 Waiver and Modification...................................................................43
Section 7.5 Further Assurances........................................................................44
Section 7.6 Expenses..................................................................................44
Section 7.7 Consultation..............................................................................44
Section 7.8 Governing Laws............................................................................45
Section 7.9 Time of Essence...........................................................................45
Section 7.10 Counterparts..............................................................................45
(ii)
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AMENDED AND RESTATED
MERGER AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 9th day of May, 2000.
BETWEEN :
AMVESCAP PLC
a corporation existing under the laws of England
(hereinafter referred to as "AMVESCAP")
- and -
TRIMARK FINANCIAL CORPORATION
a corporation existing under the laws of Ontario
(hereinafter referred to as "TRIMARK")
THIS AGREEMENT WITNESSES THAT in consideration of the respective
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE 1
INTERPRETATION
SECTION 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 respectively:
"ACQUISITION PROPOSAL" means any proposal or offer with respect to any
merger, amalgamation, arrangement, business combination, liquidation,
dissolution, recapitalization, take-over bid, purchase of all or any
material assets of, or any purchase of more than 20% of the equity (or
rights thereto) of, or similar transactions involving, Trimark or any
Trimark Material Subsidiary, excluding the Arrangement;
"AFFILIATE" shall have the meaning ascribed thereto under the
Securities Act;
"AGENT" has the meaning ascribed to such term in Section 1.1 of the
Plan of Arrangement;
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"AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES" has the meaning ascribed
thereto in Section 1.1 of the Plan of Arrangement;
"AMVESCAP CIRCULAR" means the circular to be sent to the AMVESCAP
Shareholders, including the notice of the AMVESCAP Meeting and all
appendices thereto, containing information relating to the transactions
contemplated herein together with accompanying listing particulars for
the AMVESCAP Ordinary Shares to be issued pursuant to the Arrangement;
"AMVESCAP EQUITY SUBORDINATED DEBENTURES" means the equity subordinated
debentures of Exchangeco containing the terms ascribed thereto in
Schedule F;
"AMVESCAP MATERIAL SUBSIDIARY" means each subsidiary of AMVESCAP the
total assets of which constituted more than ten percent of the
consolidated assets of AMVESCAP or the total revenues of which
constituted more than ten percent of the consolidated revenues of
AMVESCAP, in each case as set out in the financial statements of
AMVESCAP for the year ended December 31, 1999, and including each
affiliate of AMVESCAP that directly or indirectly holds an equity
interest in each such subsidiary;
"AMVESCAP MEETING" means the extraordinary general meeting of AMVESCAP
Shareholders, including any adjournment or postponement thereof, to be
called and held in accordance with applicable Laws to consider certain
matters in connection with the Arrangement;
"AMVESCAP ORDINARY SHARES" means the ordinary shares in the capital of
AMVESCAP;
"AMVESCAP RESOLUTION" means the special resolution of the AMVESCAP
Shareholders to implement the matters referred to in this Agreement
including, to the extent required, the acquisition of Trimark Common
Shares, the creation of the AMVESCAP Special Voting Share, the
allotment of AMVESCAP Ordinary Shares to be issued at the Effective
Time in connection with the Arrangement and the reservation of AMVESCAP
Ordinary Shares for issuance from time to time: (i) upon the exchange
of Exchangeable Shares; and (ii) upon the exercise of the Replacement
Options;
"AMVESCAP SHAREHOLDERS" means the holders of AMVESCAP Ordinary Shares;
"AMVESCAP SPECIAL VOTING SHARE" has the meaning ascribed thereto in the
Voting and Exchange Trust Agreement;
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"ARRANGEMENT" means an arrangement under Section 182 of the OBCA on the
terms and subject to the conditions set out in the Plan of Arrangement,
subject to any amendments or variations thereto made in accordance with
Section 6.1 or Article 6 of the Plan of Arrangement or made at the
direction of the Court;
"ARRANGEMENT RESOLUTION" means the special resolution of the Trimark
Securityholders, to be substantially in the form and content of
Schedule A annexed hereto;
"ARTICLES OF ARRANGEMENT" means the articles of arrangement of Trimark
in respect of the Arrangement that are required by the OBCA to be sent
to the Director after the Final Order is made;
"BUSINESS DAY" means any day on which commercial banks are generally
open for business in Toronto, Ontario and London, England other than a
Saturday, a Sunday or a day observed as a holiday in Toronto, Ontario
under applicable laws or in London, England under applicable laws;
"CALLCO" means a company to be incorporated by AMVESCAP under the laws
of Canada or one of the Provinces of Canada which will be a direct or
indirect wholly-owned subsidiary of AMVESCAP;
"CANADIAN SECURITIES REGULATORY AUTHORITIES" means collectively, the
securities commission or other securities regulatory authority in each
of the provinces and territories of Canada, and "CANADIAN SECURITIES
REGULATORY AUTHORITY" means any one of the foregoing.
"CONFIDENTIALITY AGREEMENT" means the confidentiality letter agreement
dated April 29, 2000 between AMVESCAP and Trimark;
"COURT" means the Superior Court of Justice (Ontario);
"DIRECTOR" means the Director appointed pursuant to Section 278 of the
OBCA;
"DISSENT RIGHTS" means the rights of dissent in respect of the
Arrangement described in Section 3.1 of the Plan of Arrangement;
"DISSENTING SHAREHOLDER" has the meaning ascribed thereto in the Plan
of Arrangement;
"EFFECTIVE DATE" means the date shown on the certificate of arrangement
to be issued by the Director under the OBCA giving effect to the
Arrangement;
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"EFFECTIVE TIME" has the meaning ascribed thereto in the Plan of
Arrangement;
"ELECTION DEADLINE" has the meaning ascribed to such term in Section
1.1 of the Plan of Arrangement;
"EXCHANGE RATIO" has the meaning ascribed thereto in the Plan of
Arrangement;
"EXCHANGEABLE SHARES" means the non-voting exchangeable shares in the
capital of Exchangeco, having the rights, privileges, restrictions and
conditions set out in Appendix I to the Plan of Arrangement;
"EXCHANGECO" means a corporation to be incorporated by AMVESCAP under
the laws of Canada or one of the Provinces of Canada which will be a
direct or indirect wholly-owned subsidiary of AMVESCAP and which will
issue the Exchangeable Shares;
"FINAL ORDER" means the final order of the Court approving the
Arrangement as such order may be amended by the Court at any time prior
to the Effective Date or, if appealed, then, unless such appeal is
withdrawn or denied, as affirmed;
"FUNDS" means the mutual funds, investment funds and collective
investment vehicles established, managed or distributed by Trimark or
any of its affiliates, other than the Optima Strategy Canadian
Diversified Pool and any other funds managed by Trimark for third
parties, and "FUND" means any one of the foregoing;
"GOVERNMENTAL ENTITY" means any (a) multinational, federal, provincial,
state, regional, municipal, local or other government, governmental or
public department, central bank, court, tribunal, arbitral body,
commission, board, bureau or agency, domestic or foreign, (b)
self-regulatory organization or stock exchange (including without
limitation the LSE, the UKLA and the Toronto Stock Exchange), (c) any
subdivision, agent, commission, board, or authority of any of the
foregoing, or (d) any quasi- governmental or private body exercising
any regulatory, expropriation or taxing authority under or for the
account of any of the foregoing;
"HOLDCO AGREEMENT" means an agreement satisfactory to AMVESCAP, in its
sole discretion, pursuant to which all of the holders of shares in the
capital of a Holding Company agree to, among other things, transfer all
of the shares in the capital of such company to Exchangeco under the
Arrangement and agree to deposit with the Agent prior to the Election
Deadline a duly completed Holdco Letter of Transmittal and Election
Form;
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"HOLDCO ALTERNATIVE" means the option of all of the holders of shares
in the capital of a Holding Company to enter into a Holdco Agreement
with AMVESCAP and to transfer all of the issued and outstanding shares
in the capital of such company to Exchangeco under the Arrangement and
to receive the consideration specified in the Plan of Arrangement;
"HOLDCO LETTER OF TRANSMITTAL AND ELECTION FORM" means the letter of
transmittal and election form for use by holders of Holdco Shares who
choose the Holdco Alternative, which will provide, among other things,
that the Holdco Alternative is available only in respect of a Holding
Company that is a single-purpose holding company: (a) which is resident
in Canada and a taxable Canadian corporation for purposes of the Tax
Act, (b) which has no assets other than Trimark Shares and/or the
shares of no more than one other Holding Company and no liabilities
whatsoever, and (c) either (i) which is a newly incorporated
corporation, or (ii) in respect of which AMVESCAP has had full access
to all of the books and records by such date that is no later than 10
calendar days prior to the date of the Trimark Meeting and AMVESCAP is
satisfied that the shareholders of such Holding Company are not able to
utilize a newly incorporated corporation on a tax effective basis;
"HOLDCO SHARES" means, in respect of a Holding Company, all of the
issued and outstanding shares in the capital of such Holding Company;
"HOLDERS" means, when used with reference to the Trimark Common Shares,
the holders of Trimark Common Shares shown from time to time in the
register maintained by or on behalf of Trimark in respect of the
Trimark Common Shares and, when used with reference to the Exchangeable
Shares or the AMVESCAP Equity Subordinated Debentures, means the
holders of Exchangeable Shares or the AMVESCAP Equity Subordinated
Debentures, respectively, shown from time to time in the register
maintained by or on behalf of Exchangeco in respect of the Exchangeable
Shares or the AMVESCAP Equity Subordinated Debentures, respectively;
"HOLDING COMPANY" means a company which is a holder of shares in the
capital of Trimark and in respect of which all of the holders of shares
in the capital of such company have validly exercised the Holdco
Alternative and duly completed and deposited with the Agent prior to
the Election Deadline a Holdco Letter of Transmittal and Election Form;
"INCLUDING" means including without limitation;
"INFORMATION" has the meaning ascribed thereto in Section 4.7(2);
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"INTERIM ORDER" means the interim order of the Court, as the same may
be amended, in respect of the Arrangement, as contemplated by Section
2.3;
"LAWS" means all statutes, regulations, statutory rules, orders, and
terms and conditions of any grant of approval, permission, authority or
license of any court or Governmental Entity, and the term "applicable"
with respect to such Laws and in the context that refers to one or more
Persons, means that such Laws apply to such Person or Persons or its or
their business, undertaking, property or securities and emanate from a
Governmental Entity having jurisdiction over the Person or Persons or
its or their business, undertaking, property or securities;
"LETTER OF TRANSMITTAL AND ELECTION FORM" means the letter of
transmittal and election form for use by holders of Trimark Common
Shares, in the form accompanying the Trimark Circular;
"LSE" means the London Stock Exchange Limited or its successors;
"MATERIAL ADVERSE CHANGE", when used in connection with AMVESCAP or
Trimark, means any change, effect, event or occurrence with respect to
its condition (financial or otherwise), properties, assets,
liabilities, obligations (whether absolute, accrued, conditional or
otherwise), businesses, operations or results of operations or those of
its subsidiaries that is, or could reasonably be expected to be,
material and adverse to the business, operations or financial condition
of such party and its subsidiaries taken as a whole other than any
change, effect, event or occurrence (i) relating to the Canadian,
United States or United Kingdom economy or securities markets in
general, (ii) affecting the Canadian, United States or United Kingdom
fund management industry in general and which does not have a
materially disproportionate impact on such party, or (iii) relating to
any change in the trading price of the AMVESCAP Ordinary Shares or the
Trimark Common Shares, respectively, related to the Arrangement or
unrelated to any change, effect, event or occurrence that is, or would
reasonably be expected to be, material and adverse to the condition,
operations or financial condition of such party and its subsidiaries
taken as a whole. For greater certainty, Material Adverse Change in
respect of Trimark shall be deemed to include, without limitation, the
net redemption of securities of the Funds (calculated from the date
hereof) having an aggregate value of at least 10% of the greater of:
(A) the aggregate net asset value of all of the Funds as at March 31,
2000; and (B) the aggregate net asset value of all of the Funds as at
the date which is three Business Days prior to the Effective Date;
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"MATERIAL ADVERSE EFFECT" when used in connection with AMVESCAP or
Trimark means any effect of a Material Adverse Change relating to such
party;
"MATERIAL FACT" shall have the meaning ascribed thereto under the
Securities Act;
"OBCA" means the Business Corporations Act (Ontario) as now in effect
and as it may be amended from time to time prior to the Effective Date;
"OSC" means the Ontario Securities Commission;
"OUTSIDE DATE" means November 15, 2000, or such later date as may be
mutually agreed by the parties to this Agreement;
"PERSON" includes any individual, firm, partnership, limited
partnership, joint venture, venture capital fund, limited liability
company, unlimited liability company, association, trust, trustee,
executor, administrator, legal personal representative, estate, group,
body corporate, corporation, unincorporated association or
organization, Governmental Entity, syndicate or other entity whether or
not having legal status;
"PLAN OF ARRANGEMENT" means the plan of arrangement in the form and
content of Schedule B annexed hereto and any amendments or variations
thereto made in accordance with Section 6.1 or Article 6 of the Plan of
Arrangement or made at the direction of the Court;
"PRE-EFFECTIVE DATE PERIOD" shall mean the period from and including
the date hereof to and including the Effective Time on the Effective
Date;
"PUBLICLY DISCLOSED BY AMVESCAP" means disclosed by AMVESCAP in a
public filing made by it with the Company Announcement Office of the
LSE or with the Registrar of Companies in England and Wales from
January 1, 1999 to April 30, 2000;
"PUBLICLY DISCLOSED BY TRIMARK" means disclosed by Trimark in a public
filing made by it with the OSC from January 1, 1999 to April 30, 2000;
"PUBLICLY DISCLOSED BY THE FUNDS" means disclosed by the applicable
Fund in a public filing made by it with the OSC from January 1, 1999 to
April 30, 2000;
"REGULATORY APPROVALS" means those sanctions, rulings, consents,
orders, exemptions, permits and other approvals (including the lapse,
without objection, of a prescribed time under a statute or regulation
that states that a
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transaction may be implemented if a prescribed time lapses following
the giving of notice without an objection being made) of Governmental
Entities, regulatory agencies or self-regulatory organizations, as set
out in Schedule C hereto;
"REPLACEMENT OPTION" has the meaning ascribed thereto in Section 2.2 of
the Plan of Arrangement;
"REPRESENTATIVES" has the meaning ascribed thereto in Section 4.7(1);
"SECURITIES ACT" means the Securities Act (Ontario) and the rules,
regulations and policies made thereunder, as now in effect and as they
may be amended from time to time prior to the Effective Date;
"SENIOR OFFICER" has the meaning ascribed thereto in the Securities
Act;
"SUBSIDIARY" means, with respect to a specified body corporate, any
body corporate of which more than 50% of the outstanding shares
ordinarily entitled to elect a majority of the board of directors
thereof (whether or not shares of any other class or classes shall or
might be entitled to vote upon the happening of any event or
contingency) are at the time owned directly or indirectly by such
specified body corporate and shall include any body corporate,
partnership, joint venture or other entity over which it exercises
direction or control or which is in a like relation to a subsidiary;
"SUPERIOR PROPOSAL" means any bona fide written Acquisition Proposal
that in the good faith determination of the Board of Directors of
Trimark, after consultation with its financial advisors and with
outside counsel (a) is reasonably capable of being completed, taking
into account all legal, financial, regulatory and other aspects of such
proposal and the party making such proposal, and (b) would, if
consummated in accordance with its terms, reasonably be expected to
result in a transaction more favourable to the shareholders of Trimark
from a financial point of view than the transaction contemplated by
this Agreement;
"SUPPORT AGREEMENT" means an agreement to be made between AMVESCAP,
Callco and Exchangeco in the form and content of Schedule D annexed
hereto, with such changes thereto as the parties hereto, acting
reasonably, may agree;
"TAX" and "TAXES" have the respective meanings ascribed thereto in
Section j(v) of Schedule G;
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"TAX ACT" means the Income Tax Act (Canada) and the rules, regulations
and policies made thereunder, as now in effect and as they may be
amended from time to time prior to the Effective Date;
"TAX RETURNS" means all returns, declarations, reports, information
returns and statements required to be filed with any taxing authority
relating to Taxes;
"TRIMARK CIRCULAR" means the management information circular, and
accompanying notice of the Trimark Meeting and including all appendices
thereto, to be sent to holders of Trimark Common Shares and Trimark
Options in connection with the Trimark Meeting;
"TRIMARK COMMON SHARES" means the common shares in the capital of
Trimark;
"TRIMARK DOCUMENTS" has the meaning ascribed thereto in Section (l) of
Schedule G;
"TRIMARK EMPLOYEE PROFIT SHARING PLAN" means the Profit Sharing Plan
for Trimark Employees;
"TRIMARK EMPLOYEE SHARE PURCHASE PLAN" means the 1987 Employee Share
Purchase Plan for Trimark employees, as amended;
"TRIMARK MATERIAL SUBSIDIARY" means each subsidiary of Trimark the
total assets of which constituted more than ten percent of the
consolidated assets of Trimark or the total revenues of which
constituted more than ten percent of the consolidated revenues of
Trimark, in each case as set out in the financial statements of Trimark
for the year ended March 31, 2000, and including each affiliate of
Trimark that directly or indirectly holds an equity interest in each
such subsidiary;
"TRIMARK MEETING" means the annual and special meeting of Trimark
Securityholders, including any adjournment or postponement thereof, to
be called and held in accordance with the Interim Order to consider the
Arrangement;
"TRIMARK OPTIONS" means the Trimark Common Share purchase options
granted under the Trimark Stock Option Plan;
"TRIMARK PLANS" has the meaning ascribed thereto in Section k(i) of
Schedule G;
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"TRIMARK SECURITYHOLDERS" means the holders of Trimark Common Shares
and Trimark Options;
"TRIMARK STOCK OPTION PLAN" means the Executive Stock Option Plan
established by Trimark's board of directors on February 25, 1992, as
amended;
"TRUSTEE" means the trustee to be chosen by AMVESCAP, acting
reasonably, to act as trustee under the Voting and Exchange Trust
Agreement, being a corporation organized and existing under the laws of
Canada and authorized to carry on the business of a trust company in
all the provinces of Canada, and any successor trustee appointed under
the Voting and Exchange Trust Agreement;
"UKLA" means the Financial Services Authority in its capacity as the
competent authority for the purposes of Part IV of the Financial
Services Xxx 0000 of the United Kingdom (or any successor Act); and
"VOTING AND EXCHANGE TRUST AGREEMENT" means an agreement to be made
between AMVESCAP, Exchangeco and the Trustee in connection with the
Plan of Arrangement in the form and content of Schedule E annexed
hereto, with such changes thereto as the parties hereto, acting
reasonably, may agree.
SECTION 1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Agreement into Articles, Sections and other
portions and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation hereof. Unless otherwise
indicated, all references to an "Article" or "Section" followed by a number
and/or a letter refer to the specified Article or Section of this Agreement. The
terms "this Agreement", "hereof", "herein" and "hereunder" and similar
expressions refer to this Agreement (including the Schedules hereto) and not to
any particular Article, Section or other portion hereof and include any
agreement or instrument supplementary or ancillary hereto.
SECTION 1.3 CURRENCY.
Unless otherwise specifically indicated, all sums of money referred to
in this Agreement are expressed in lawful money of Canada.
SECTION 1.4 NUMBER, ETC.
Unless the context otherwise requires, words importing the singular
shall include the plural and vice versa and words importing any gender shall
include all genders.
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SECTION 1.5 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, such action shall
be required to be taken on the next succeeding day which is a Business Day.
SECTION 1.6 ENTIRE AGREEMENT.
This Agreement and the agreements and other documents herein referred
to constitute the entire agreement between the parties hereto pertaining to the
terms of the Arrangement and supersede all other prior agreements,
understandings, negotiations and discussions, whether oral or written, between
the parties hereto with respect to the terms of the Arrangement.
SECTION 1.7 SCHEDULES.
The following Schedules are annexed to this Agreement and are hereby
incorporated by reference into this Agreement and form part hereof:
Schedule A - Arrangement Resolution
Schedule B - Plan of Arrangement
Schedule C - Regulatory Approvals
Schedule D - Support Agreement
Schedule E - Voting and Exchange Trust Agreement
Schedule F - AMVESCAP Equity Subordinated Debentures Term Sheet
Schedule G - Trimark Representations and Warranties
Schedule H - AMVESCAP Representations and Warranties
SECTION 1.8 ACCOUNTING MATTERS.
Unless otherwise stated, all accounting terms used in this Agreement in
respect of Trimark shall have the meanings attributable thereto under Canadian
generally accepted accounting principles and all determinations of an accounting
nature in respect of Trimark required to be made shall be made in a manner
consistent with Canadian generally accepted accounting principles and practices,
consistently applied. Unless otherwise stated, all accounting terms used in this
Agreement in respect of AMVESCAP shall have the meanings attributable thereto
under United Kingdom generally accepted accounting principles and all
determinations of an accounting nature required to be made in respect of
AMVESCAP shall be made in a manner consistent with United Kingdom generally
accepted accounting principles and practices, consistently applied.
SECTION 1.9 KNOWLEDGE.
Each reference herein to the knowledge of a party means, unless
otherwise specified, the knowledge of such party's Senior Officers following due
inquiry.
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ARTICLE 2
THE ARRANGEMENT
SECTION 2.1 IMPLEMENTATION STEPS BY TRIMARK.
Trimark covenants in favour of AMVESCAP that, on or prior to the
Effective Date and subject to the satisfaction or waiver of the other conditions
herein contained in favour of each such party, Trimark shall:
(a) as soon as reasonably practicable, apply in a manner
acceptable to AMVESCAP, acting reasonably, under Section 182
of the OBCA for an order approving the Arrangement and for the
Interim Order, and thereafter proceed with and diligently seek
the Interim Order;
(b) convene and hold the Trimark Meeting not later than July 24,
2000 subject to adjournments permitted in accordance with
Section 4.6 (provided that, in any event, the Trimark Meeting
shall be at least one clear Business Day after the date upon
which the AMVESCAP Meeting takes place) for the purpose of
considering the Arrangement Resolution, the election of
directors, the appointment of Trimark's auditors and the
presentation of the financial statements of Trimark for the
year ended March 31, 2000 (and for any other proper purpose
approved by AMVESCAP, acting reasonably, as may be set out in
the notice for such meeting) (provided however that if there
is another Acquisition Proposal to be considered at the
Trimark Meeting, the order of presentation, signage, proxy
forms and other matters related thereto shall be acceptable to
AMVESCAP, acting reasonably);
(c) subject to Section 4.6, not adjourn, postpone or cancel (or
propose for adjournment, postponement or cancellation) the
Trimark Meeting without AMVESCAP's prior written consent
except as required by Laws or required by Trimark's
Securityholders, provided that Trimark shall be entitled to
adjourn or postpone the Trimark Meeting to ensure that such
meeting takes place at least one clear Business Day after the
AMVESCAP Meeting takes place;
(d) at the request of AMVESCAP, solicit from the Trimark
Securityholders proxies in favour of the approval of the
Arrangement Resolution (in a commercially reasonable manner)
and use all commercially reasonable efforts to take all other
action that is necessary or desirable to secure the approval
of the Arrangement Resolution by the Trimark Securityholders,
except to the extent that the Board of Directors has changed
its recommendation in accordance with the terms of this
Agreement (and subject in all cases to Section 6.4 hereof);
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(e) subject to obtaining the approvals as are required by the
Interim Order, proceed with and diligently pursue the
application to the Court for the Final Order;
(f) subject to obtaining the Final Order and the satisfaction or
waiver of the other conditions herein contained in favour of
each party, send to the Director, for endorsement and filing
by the Director, the Articles of Arrangement and such other
documents as may be required in connection therewith under the
OBCA to give effect to the Arrangement; and
(g) subject to obtaining the Final Order and the satisfaction or
waiver of the other conditions herein contained in its favour,
execute the Support Agreement and the Voting and Exchange
Trust Agreement.
SECTION 2.2 IMPLEMENTATION STEPS BY AMVESCAP.
AMVESCAP covenants in favour of Trimark that, on or prior to the
Effective Date and subject to the satisfaction or waiver of the other conditions
herein contained in favour of each such party:
(a) AMVESCAP shall convene and hold the AMVESCAP Meeting within 35
days of the date of the mailing of the AMVESCAP Circular and
prior to the Trimark Meeting, for the purpose of considering
matters related to the Arrangement as are required to be
approved by the AMVESCAP Shareholders as are referred to in
the AMVESCAP Resolution (and for any other proper purpose as
may be set out in the notice for such meeting);
(b) AMVESCAP shall not adjourn, postpone or cancel (or propose for
adjournment, postponement or cancellation) the AMVESCAP
Meeting without Trimark's prior written consent except as
required by Laws, U.K. common law principles or required by
AMVESCAP's Shareholders;
(c) AMVESCAP shall solicit from the AMVESCAP Shareholders proxies
in favour of the approval of the AMVESCAP Resolution (in a
commercially reasonable manner) and use all commercially
reasonable efforts to take all other action that is necessary
or desirable to secure the approval of the AMVESCAP Resolution
by the AMVESCAP Shareholders, except to the extent that the
Board of Directors of AMVESCAP has changed its recommendation
in accordance with its fiduciary duties;
17
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(d) AMVESCAP shall incorporate and organize Callco and Exchangeco
and provide for Exchangeco to have its share capital include
the Exchangeable Shares;
(e) in the accordance with the terms of the Plan of Arrangement,
in the event that the Aggregate Principal Amount of Debentures
is greater than $100,000,000, then AMVESCAP shall, and shall
cause Exchangeco to, execute an indenture governing the
AMVESCAP Equity Subordinated Debentures in a form consistent
with the terms contained in Schedule F hereto;
(f) AMVESCAP, Callco and Exchangeco shall execute and deliver the
Support Agreement;
(g) AMVESCAP and Exchangeco shall execute and deliver the Voting
and Exchange Trust Agreement; and
(h) AMVESCAP shall create and issue to the Trustee the AMVESCAP
Special Voting Share.
SECTION 2.3 INTERIM ORDER.
The notice of motion for the application referred to in Section 2.1(a)
shall request that the Interim Order provide:
(a) for the class of Persons to whom notice is to be provided in
respect of the Arrangement and the Trimark Meeting and for the
manner in which such notice is to be provided;
(b) that the requisite approval for the Arrangement Resolution
shall be 66 2/3% of the votes cast on the Arrangement
Resolution by Trimark Securityholders present in person or by
proxy at the Trimark Meeting (such that each holder of Trimark
Common Shares is entitled to one vote for each Trimark Common
Share held) and each holder of Trimark Options is entitled to
the number of votes represented by the number of Trimark
Common Shares into which such holder's Trimark Option is
convertible, rounded down to the nearest whole number of
Trimark Common Shares and without regard to vesting
requirements, if any);
(c) that, in all other respects, the terms, restrictions and
conditions of the by-laws and articles of Trimark, including
quorum requirements and all other matters, shall apply in
respect of the Trimark Meeting, except, in respect of the
by-laws, as AMVESCAP and Trimark reasonably agree; and
18
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(d) for the grant of the Dissent Rights.
SECTION 2.4 ARTICLES OF ARRANGEMENT.
The Articles of Arrangement shall, with such other matters as are
necessary to effect the Arrangement, implement the Plan of Arrangement.
SECTION 2.5 TRIMARK CIRCULAR.
As promptly as reasonably practicable after the execution and delivery
of this Agreement, Trimark shall complete the Trimark Circular, the Letter of
Transmittal and Election Form and the Holdco Letter of Transmittal and Election
Form together with any other documents required by the Securities Act or other
applicable Laws in connection with the Arrangement, and as promptly as
practicable after the execution and delivery of this Agreement and after
obtaining the Interim Order, and in any event, before June 23, 2000 (unless an
extension of such date is consented to in writing by AMVESCAP, acting
reasonably), Trimark shall, subject to the contemporaneous mailing of the
AMVESCAP Circular or as otherwise agreed by the parties, cause the Trimark
Circular, the Letter of Transmittal and Election Form and the Holdco Letter of
Transmittal and Election Form and other documentation required in connection
with the Trimark Meeting to be sent to each holder of Trimark Common Shares and
filed as required by the Interim Order and applicable Laws.
SECTION 2.6 AMVESCAP CIRCULAR.
AMVESCAP shall, subject to the obtaining of required Regulatory
Approvals in connection therewith, complete the AMVESCAP Circular together with
any other documents required by the LSE and UKLA requirements or applicable Laws
in connection with the AMVESCAP Meeting and shall, subject to the
contemporaneous mailing of the Trimark Circular or as otherwise agreed by the
parties, cause the AMVESCAP Circular and other documentation required in
connection with the AMVESCAP Meeting to be sent to each AMVESCAP Shareholder as
required by applicable Laws.
SECTION 2.7 SECURITIES COMPLIANCE.
AMVESCAP shall use its best efforts to (which, for greater certainty,
shall not require AMVESCAP to consent to a term or condition of an approval or
consent which AMVESCAP reasonably determines could have a material adverse
impact on AMVESCAP) obtain all orders required from the applicable Canadian
Securities Regulatory Authorities to permit the issuance and first resale of:
(a) the Exchangeable Shares issued pursuant to the Arrangement and to holders of
the AMVESCAP Equity Subordinated Debentures in accordance with the terms of such
debentures; (b) the AMVESCAP Ordinary Shares issued at the Effective Time and
from time to time (i) upon exchange of the Exchangeable Shares; and (ii) upon
exercise of the Replacement Options; and (c) the AMVESCAP Equity Subordinated
19
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Debentures, in each case without qualification with or approval of or the filing
of any prospectus, or the taking of any proceeding with, or the obtaining of any
further order, ruling or consent from, any Governmental Entity in any of the
provinces of Canada, or the fulfilment of any other legal requirement in any
such jurisdiction (other than, with respect to such first resales, any
restrictions on transfer by reason of, among other things, a holder being a
"control person" of AMVESCAP or Exchangeco for purposes of Canadian federal,
provincial or territorial securities Laws or equivalent United Kingdom Laws).
SECTION 2.8 PREPARATION OF FILINGS, ETC.
(1) AMVESCAP and Trimark shall use their reasonable best efforts to
cooperate in the preparation, seeking and obtaining of all circulars,
filings, consents, Regulatory Approvals and other approvals and other
matters in connection with this Agreement and the Arrangement,
provided, however, that, with respect to Canadian provincial or
territorial qualifications, AMVESCAP shall not be required to register
or qualify as a foreign corporation or to take any action that would
subject it to service of process in any jurisdiction where it is not
now so subject, except as to matters and transactions arising solely
from the offer and sale of the Exchangeable Shares and the AMVESCAP
Ordinary Shares and the AMVESCAP Equity Subordinated Debentures.
(2) Each of AMVESCAP and Trimark shall furnish to the other all such
information concerning it and its shareholders as may be required (and,
in the case of its shareholders, available to it) for the effectuation
of the actions described in Sections 2.5, 2.6 and 2.7 and the foregoing
provisions of this Section 2.8, and each covenants that no information
furnished by it (to its knowledge in the case of information concerning
its shareholders) in connection with such actions or otherwise in
connection with the consummation of the Arrangement and the other
transactions contemplated by this Agreement will contain any untrue
statement of a material fact or omit to state a material fact required
to be stated in any such document or necessary in order to make any
information so furnished for use in any such document not misleading in
the light of the circumstances in which it is furnished.
(3) Each of AMVESCAP and Trimark covenant to provide the other with a draft
copy of the AMVESCAP Circular and the Trimark Circular, respectively,
and any other documentation to be sent to the AMVESCAP Shareholders and
Trimark Securityholders, respectively, in connection with this
Agreement and the Arrangement from time to time prior to the mailing
thereof on a confidential basis, and to provide the other with a
reasonable opportunity to review and provide comments thereon.
20
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(4) AMVESCAP and Trimark shall each promptly notify the other if at any
time before the Effective Time it becomes aware that the Trimark
Circular or the AMVESCAP Circular, an application for an order or any
other document described in Section 2.7 contains any untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements contained therein
not misleading in light of the circumstances in which they are made, or
that otherwise requires an amendment or supplement to the Trimark
Circular or the AMVESCAP Circular or such application or other
document. In any such event, AMVESCAP and Trimark shall cooperate in
the preparation of a supplement or amendment to the Trimark Circular or
the AMVESCAP Circular or such application or other document, as
required and as the case may be, and, if required, shall cause the same
to be distributed to shareholders of AMVESCAP or Trimark and/or filed
with the relevant securities regulatory authorities and/or stock
exchanges.
(5) Trimark shall ensure that the Trimark Circular complies with all
applicable Laws and, without limiting the generality of the foregoing,
that the Trimark Circular does 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 contained therein not
misleading in light of the circumstances in which they are made (other
than with respect to any information relating to and provided by
AMVESCAP or any third party that is not an affiliate of Trimark).
Without limiting the generality of the foregoing, Trimark shall ensure
that the Trimark Circular provides holders of Trimark Common Shares
with information in sufficient detail to permit them to form a reasoned
judgment concerning the matters to be placed before them at the Trimark
Meeting, and AMVESCAP shall provide all information in respect of
AMVESCAP reasonably necessary in order to do so.
(6) AMVESCAP shall ensure that the AMVESCAP Circular complies with all
applicable Laws and, without limiting the generality of the foregoing,
that the AMVESCAP Circular does 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 contained therein not
misleading in light of the circumstances in which they are made (other
than with respect to any information relating to and provided by
Trimark or any third party that is not an affiliate of AMVESCAP).
Without limiting the generality of the foregoing, AMVESCAP shall ensure
that the AMVESCAP Circular provides AMVESCAP Shareholders with
information in sufficient detail to permit them to form a reasoned
judgment concerning the matters to be placed before them at the
AMVESCAP Meeting, and Trimark shall provide all information in respect
of Trimark reasonably necessary in order to do so.
21
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SECTION 2.9 HOLDCO ALTERNATIVE.
Persons who hold shares in the capital of Trimark indirectly through a
Holding Company may have all of the outstanding Holdco Shares acquired by
Exchangeco pursuant to the Plan of Arrangement in accordance with the terms of a
Holdco Agreement provided that (i) such persons provide a written request to
that effect to the Agent no later than 12 calendar days prior to the date of the
Trimark Meeting, (ii) all of the holders of shares in the capital of such
Holding Company execute such Holdco Agreement, (iii) all of the holders of
shares in the capital of such Holding Company duly complete and deposit with the
Agent prior to the Election Deadline a Holdco Letter of Transmittal and Election
Form, and (iv) such other documents as AMVESCAP may require pursuant to the
terms of such Holdco Agreement are delivered on or prior to the Effective Date.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF TRIMARK.
Trimark represents and warrants to and in favour of AMVESCAP as set out
in Schedule G and acknowledges that AMVESCAP is relying upon such
representations and warranties in connection with the matters contemplated by
this Agreement.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF AMVESCAP.
AMVESCAP represents and warrants to and in favour of Trimark as set out
in Schedule H and acknowledges that Trimark is relying upon such representations
and warranties in connection with the matters contemplated by this Agreement.
SECTION 3.3 SURVIVAL.
For greater certainty, the representations and warranties of Trimark
and AMVESCAP contained herein shall survive the execution and delivery of this
Agreement and shall terminate on the earlier of the termination of this
Agreement in accordance with its terms and the Effective Time. Any investigation
by a party hereto and its advisors shall not mitigate, diminish or affect the
representations and warranties of another party to this Agreement.
ARTICLE 4
COVENANTS
SECTION 4.1 RETENTION OF GOODWILL.
During the Pre-Effective Date Period, Trimark will, subject to the fact
that a transaction involving its businesses is contemplated hereby, continue to
carry on the
22
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business of Trimark and its subsidiaries in a manner consistent with prior
practice, working to preserve the attendant goodwill of such entities and to
contribute to retention of that goodwill to and after the Effective Date, but
subject to the following provisions of this Article 4. The following provisions
of this Article 4 are intended to be in furtherance of this general commitment.
SECTION 4.2 TREATMENT OF OPTIONS, ETC.
(a) The Trimark Options will be dealt with as provided in the Plan
of Arrangement.
(b) In connection with the Trimark Employee Profit Sharing Plan:
(i) all Trimark Common Shares purchased by or on behalf of a
participant and not vested as of the date hereof shall be
deemed to vest immediately prior to the Effective Time, and
(ii) the Trimark Common Shares of each participant therein
shall be delivered to AMVESCAP or the participant in
accordance with the instructions of such participant. Trimark
shall, forthwith after the date hereof, terminate or suspend
the Trimark Employee Share Purchase Plan and each participant
therein who has purchased any Trimark Common Shares thereunder
with the benefit of a loan from Trimark or any subsidiary
shall be offered the opportunity to either prepay or repay the
loan in full, plus interest accrued thereon (if any), and
receive such Trimark Common Shares, or to replace the Trimark
Common Shares pledged as security therefor with all of the
cash proceeds of the exchange thereof under the Arrangement,
the Exchangeable Shares and/or AMVESCAP Equity Subordinated
Debentures and/or AMVESCAP Ordinary Shares into which they are
exchanged under the Arrangement as substitute collateral
security on the same terms in each case, within 30 business
days of the Effective Date, and Trimark shall adopt such
requirements as changes, regulations or administrative
provisions in form and substance satisfactory to AMVESCAP,
acting reasonably, forthwith after the date hereof in
accordance with the terms of the Trimark Employee Share
Purchase Plan. In connection with the Trimark Deferred Share
Unit Plan for Non-Employee Directors, Trimark will ensure
that, notwithstanding any provisions to the contrary in such
plan, that (i) the Settlement Date (as defined in such plan)
for each of the directors of Trimark that has elected to
participate in the plan is deemed to be the day prior to the
Effective Date and (ii) all Deferred Shares Units that have
been allocated to the account of a director of Trimark under
such plan are settled on such date in cash as provided for in
section 10 of the plan (and, for greater certainty, not in
Trimark Common Shares as provided for in section 9 of the
plan).
23
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SECTION 4.3 COVENANTS OF TRIMARK.
(a) Trimark covenants and agrees that, until the Effective Date or
the earlier termination of this Agreement in accordance with
Article 6, except (i) with the consent of AMVESCAP to any
deviation therefrom; (ii) as has been disclosed in writing by
Trimark to AMVESCAP in a form acceptable to AMVESCAP; or (iii)
with respect to any matter expressly contemplated by this
Agreement or the Plan of Arrangement, including the
transactions involving the businesses of Trimark and AMVESCAP
contemplated hereby, Trimark will, and will cause the Trimark
Material Subsidiaries and the Funds to:
(i) carry on its business in, and only in, the ordinary
and regular course in substantially the same manner
as heretofore conducted and in compliance with all
applicable Laws and, to the extent consistent with
such business, use all reasonable efforts to preserve
intact its present business organization and keep
available the services of its present officers and
employees and others having business dealings with it
to the end that its goodwill and business shall be
maintained; provided that, for greater certainty,
nothing herein shall restrict Trimark's ability to,
with prior consultation with AMVESCAP, develop and
launch new products;
(ii) not split, consolidate or reclassify any of the
outstanding shares of Trimark or any of the
outstanding securities of a Fund, nor declare, set
aside or pay any dividends on or make any other
distributions on or in respect of the outstanding
shares of Trimark, other than normal and customary
quarterly dividends on the Trimark Common Shares, and
for greater certainty, any such normal and customary
quarterly dividend declared prior to, but with a
payment date after, the Effective Date, shall remain
payable on the payment date to the shareholder of
Trimark as of the record date for such dividend;
(iii) not amend the articles or by-laws of Trimark or any
material contracts or constating documents of a Fund
or materially amend the articles or by-laws of any
subsidiary;
(iv) not sell, pledge, encumber, allot, reserve, set aside
or issue, authorize or propose the sale, pledge,
encumbrance, allotment, reservation, setting aside or
issuance of, or purchase or redeem or propose the
purchase or redemption of, any shares in its capital
stock (including under its normal course issuer bid)
or of
24
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any Trimark Material Subsidiary thereof or any class
of securities convertible or exchangeable into, or
rights, warrants or options to acquire, any such
shares or other convertible or exchangeable
securities, except for (a) transactions between two
or more wholly-owned Trimark subsidiaries or between
a wholly-owned subsidiary of Trimark and Trimark, and
(b) the issuance of Trimark Common Shares pursuant to
Trimark Options granted prior to the date hereof
which are or become fully vested and are duly
exercised;
(v) not amend, vary or modify the Trimark Employee Share
Purchase Plan, the Trimark Employee Profit Sharing
Plan or the Trimark Stock Option Plan or any Trimark
Options except to cause the unvested Trimark Common
Shares under the Trimark Employee Profit Sharing Plan
to vest as contemplated hereby;
(vi) not reorganize, amalgamate or merge Trimark or any of
the Trimark Material Subsidiaries or any of the Funds
with any other Person, nor acquire or agree to
acquire by amalgamating, merging or consolidating
with, purchasing substantially all of the assets or
shares of or otherwise, any business of any
corporation, partnership, association or other
business organization or division thereof, which
acquisition would be material to its business or
financial condition on a consolidated basis;
(vii) not to acquire any property or assets aggregating 10%
or more of Trimark's total consolidated property and
assets as at March 31, 1999 other than in the
ordinary course of business consistent with past
practice;
(viii) except with respect to the sale of assets of Trimark
or any subsidiary or any Fund in the ordinary and
regular course of business consistent with past
practice, not sell or otherwise dispose of any
material assets (other than relating to transactions
between two or more wholly-owned Trimark subsidiaries
or between a wholly-owned subsidiary of Trimark and
Trimark);
(ix) carry out the terms of the Interim Order and the
Final Order applicable to it and use its reasonable
efforts to comply promptly with all requirements
which applicable Laws may impose on Trimark or its
subsidiaries with respect to the transactions
contemplated hereby and by the Arrangement;
25
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(x) not, and cause each of the Trimark Material
Subsidiaries not:
(A) other than pursuant to existing employment,
termination, compensation arrangements or
policies, enter into or modify any
employment, severance, collective bargaining
or similar agreements, policies or
arrangements with, or grant any material
bonuses, salary increases, pension or
supplemental pension benefits, profit
sharing, retirement allowances, deferred
compensation, incentive compensation,
severance or termination pay to or any other
form of compensation or with respect to any
increase of benefits payable to, or make any
loan to, any officers or directors of
Trimark or any Trimark Material Subsidiary;
or
(B) other than in the usual, ordinary and
regular course of business and consistent
with past practice or pursuant to existing
employment, termination, compensation
arrangements or policies, in the case of
employees who are not officers or directors
of Trimark or any Trimark Material
Subsidiary, take any action with respect to
the entering into or material modifying of
any material employment, severance,
collective bargaining or similar agreements,
policies or arrangements or grant any
material bonuses, salary increases, pension
or supplemental pension benefits, profit
sharing, retirement allowances, deferred
compensation, incentive compensation,
severance or termination pay or any other
form of compensation or with respect to any
material increase of benefits payable, or
make any material loans to employees;
(xi) not, and will cause its subsidiaries and the Funds to
not, settle or compromise any claim brought by any
present, former or purported holder of any of its
securities in connection with the transactions
contemplated by this Agreement or the Arrangement
prior to the Effective Date;
(xii) not guarantee the payment of material indebtedness or
incur material indebtedness for money borrowed or
issue or sell any debt securities except in the
ordinary and regular course of business consistent
with past practice, other than as has been set forth
in writing on the date hereof by Trimark to AMVESCAP
in a form acceptable to AMVESCAP;
26
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(xiii) not, except in the usual, ordinary and regular course
of business and consistent with past practice: (A)
satisfy or settle any claims or liabilities prior to
the same being due, except such as have been reserved
against in the financial statements of Trimark and
its subsidiaries or as has been disclosed in writing
to AMVESCAP by Trimark in a form acceptable to
AMVESCAP, which are, individually or in the
aggregate, material; (B) grant any waiver, exercise
any option or relinquish any contractual rights which
are, individually or in the aggregate, material; (C)
permit any of the Funds to do any of the foregoing;
or (D) enter into any interest rate, currency or
commodity swaps, xxxxxx or other similar financial
instruments;
(xiv) use its reasonable commercial efforts (or cause each
of its subsidiaries to use reasonable commercial
efforts) to cause its current insurance (or
re-insurance) policies not to be cancelled or
terminated or any of the coverage thereunder to
lapse, unless simultaneously with such termination,
cancellation or lapse, replacement policies
underwritten by insurance and re-insurance companies
of nationally recognized standing providing coverage
equal to or greater than the coverage under the
cancelled, terminated or lapsed policies for
substantially similar premiums are in full force and
effect;
(xv) not make any changes to existing accounting practices
relating to Trimark or any subsidiary or any Fund
except as required by Canadian Law or required by
generally accepted accounting principles or make any
material tax election inconsistent with past
practice; and
(xvi) promptly advise AMVESCAP orally and, if then
requested, in writing:
(A) of any event occurring subsequent to the
date of this Agreement that would render any
representation or warranty of Trimark
contained in this Agreement (except any such
representation or warranty which speaks
solely as of a date prior to the occurrence
of such event), if made on or as of the date
of such event or the Effective Date, untrue
or inaccurate in any material respect;
(B) of any Material Adverse Change in respect of
Trimark or any Fund; and
27
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(C) of any material breach by Trimark of any
covenant or agreement contained in this
Agreement;
(b) Trimark shall and shall cause its subsidiaries and the Funds
to perform all obligations required or desirable to be
performed by Trimark or any of its subsidiaries or the Funds
under this Agreement, co-operate with AMVESCAP in connection
therewith, and do all such other acts and things as may be
necessary or desirable in order to consummate and make
effective, as soon as reasonably practicable, the transactions
contemplated in this Agreement and, without limiting the
generality of the foregoing, Trimark shall and where
appropriate shall cause its subsidiaries and the Funds to:
(i) use all reasonable efforts to obtain the requisite
approvals of holders of Trimark Securityholders to
the Arrangement as contemplated in Section 2.1(d) and
the requisite approvals of unitholders of the Funds
to the Arrangement;
(ii) apply for and use all reasonable efforts to obtain
all Regulatory Approvals relating to Trimark or any
of its subsidiaries or any of the Funds and, in doing
so, to keep AMVESCAP reasonably informed as to the
status of the proceedings related to obtaining the
Regulatory Approvals, including, but not limited to,
providing AMVESCAP with copies of all related
applications and notifications, in draft form, in
order for AMVESCAP to provide its reasonable
comments;
(iii) give or file, as the case may be, in a timely
fashion, all notices required in connection with the
transactions contemplated hereby, in each case in
form and substance satisfactory to AMVESCAP
including, without limitation, notice to all security
holders of the Funds of the change in control of the
manager (as required under National Instrument
81-102);
(iv) apply for and use all reasonable efforts to obtain
the Interim Order and the Final Order;
(v) defend all lawsuits or other legal, regulatory or
other proceedings challenging or affecting this
Agreement or the consummation of the transactions
contemplated hereby;
(vi) use its reasonable efforts to have lifted or
rescinded any injunction or restraining order or
other order which may
28
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adversely affect the ability of the parties to
consummate the transactions contemplated hereby;
(vii) effect all necessary registrations, filings and
submissions of information required by Governmental
Entities from Trimark or any of its subsidiaries or
any of the Funds; and
(viii) use its reasonable efforts to obtain all necessary
waivers, consents and approvals required to be
obtained by Trimark or a subsidiary from other
parties to loan agreements, leases or other
contracts; and
(c) Trimark shall carry out the terms of the Interim Order and
Final Order applicable to it and use its reasonable efforts to
comply promptly with all requirements which applicable Laws
may impose on Trimark or its subsidiaries with respect to the
transactions contemplated hereby and by the Arrangement.
SECTION 4.4 COVENANTS OF AMVESCAP.
AMVESCAP hereby covenants and agrees (and, if applicable, will cause
its subsidiaries):
(a) to perform all obligations required or desirable to be
performed by it under this Agreement, to co-operate with
Trimark in connection therewith, and to do all such other acts
and things as may be necessary or desirable in order to
consummate and make effective, as soon as reasonably
practicable, the transactions contemplated by this Agreement
and, without limiting the generality of the foregoing, to:
(i) use all reasonable efforts to obtain the requisite
approvals of the AMVESCAP Shareholders as
contemplated in Section 2.2(c);
(ii) apply for and use all reasonable efforts to obtain
all Regulatory Approvals required to be obtained by
AMVESCAP, and, in doing so, to keep Trimark
reasonably informed as to the status of the
proceedings related to obtaining the Regulatory
Approvals, including, but not limited to, providing
Trimark with copies of all related applications and
notifications, in draft form, in order for Trimark to
provide its reasonable comments;
(iii) defend all lawsuits or other legal, regulatory or
other proceedings to which it is a party challenging
or affecting this Agreement or the consummation of
the transactions contemplated hereby;
29
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(iv) use all reasonable efforts to have lifted or
rescinded any injunction or restraining order or
other order relating to AMVESCAP which may adversely
affect the ability of the parties to consummate the
transactions contemplated hereby;
(v) effect all necessary registrations, filings and
submissions of information required by Governmental
Entities from AMVESCAP or its subsidiaries;
(vi) reserve a sufficient number of AMVESCAP Ordinary
Shares for issuance (A) to the Trimark
Securityholders at the Effective Time pursuant to the
Arrangement; and (B) from time to time (I) upon the
exchange of Exchangeable Shares; and (II) upon the
exercise of the Replacement Options; and
(vii) to cause Exchangeco to reserve a sufficient number of
Exchangeable Shares for issuance (A) to the Trimark
Securityholders at the Effective Time pursuant to the
Arrangement; and (B) from time to time in accordance
with the terms of the AMVESCAP Equity Subordinated
Debentures;
(b) to use its best efforts to (which, for greater certainty,
shall not require AMVESCAP to consent to a term or condition
of an approval or consent which AMVESCAP reasonably determines
could have a material adverse impact on AMVESCAP):
(i) cause the Exchangeable Shares (including the
Exchangeable Shares that may be issued from time to
time in accordance with the terms of the AMVESCAP
Equity Subordinated Debentures) and the AMVESCAP
Equity Subordinated Debentures to be listed and
posted for trading on the Toronto Stock Exchange by
the Effective Date and to maintain such listings for
so long as there are Exchangeable Shares or AMVESCAP
Equity Subordinated Debentures, as applicable,
outstanding (other than those securities held by
AMVESCAP or any of its affiliates);
(ii) ensure that Exchangeco has, at the Effective Time and
for so long as there are Exchangeable Shares
outstanding (other than those Exchangeable Shares
held by AMVESCAP or any of its affiliates), a
"substantial Canadian presence" within the meaning of
subsection 206(1.1) of the Tax Act;
30
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(iii) cause the listing on the Official List of UKLA and
admission to trading on the LSE of the AMVESCAP
Ordinary Shares to be issued at the Effective Time
and from time to time (A) upon exchange of the
Exchangeable Shares; and (B) upon the exercise of the
Replacement Options; and
(iv) ensure that Exchangeco is, at the Effective Time and
for so long as there are Exchangeable Shares
outstanding (other than those Exchangeable Shares
held by AMVESCAP or any of its affiliates), a
"taxable Canadian corporation" and not a "mutual fund
corporation", each within the meaning of the Tax Act;
(c) to cause Exchangeco to enter into elections with holders of
Trimark Common Shares who receive Exchangeable Shares under
section 85 of the Tax Act and the applicable provincial
legislation, where necessary, under the Arrangement and, where
applicable, an election under section 57.9 of the Corporations
Tax Act (Ontario) (or such similar elections as may be
applicable under the analogous provisions of any other
provincial corporation tax law);
(d) to carry out the terms of the Interim Order and Final Order
applicable to it and use its reasonable efforts to comply
promptly with all requirements which applicable Laws may
impose on AMVESCAP or its subsidiaries with respect to the
transactions contemplated hereby and by the Arrangement;
(e) that it has read and accepts the terms of the executive
severance agreements between Trimark and each of X.X. Xxxxxx,
X.X. Xxxxx, X. Xxxxxx, X. Xxxxxx, X. Xxxxxxx, X. Xxxxx, X.
Xxxx, X. Xxxxxx, X. Xxxxxxx, X.X. Xxx and X. Xxxxx, each dated
April 28, 2000, and AMVESCAP will cause Trimark to abide by
and perform (and not to challenge or contest) the provisions
thereof and the obligations of Trimark thereunder following
the Arrangement;
(f) until the Effective Date or the earlier termination of this
Agreement in accordance with Article 6, promptly advise
Trimark orally and, if then requested, in writing:
(i) of any event occurring subsequent to the date of this
Agreement that would render any representation or
warranty of AMVESCAP contained in this Agreement
(except any such representation or warranty which
speaks solely as of a date prior to the occurrence of
such event), if made on or as of the
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date of such event or the Effective Date, untrue or
inaccurate in any material respect;
(ii) of any Material Adverse Change in respect of
AMVESCAP; and
(iii) of any material breach by AMVESCAP of any covenant or
agreement contained in this Agreement; and
(g) until the Effective Date, and other than to implement the
transactions in the manner contemplated by the Arrangement,
not to amend its articles or by-laws or enter into any
transaction, if such amendment or transaction would materially
adversely affect the treatment under the Tax Act or U.K. tax
legislation (as in effect on the date hereof) of the
consideration to be received by the holders of Trimark Common
Shares pursuant to the Arrangement, who are resident in
Canada.
SECTION 4.5 COVENANTS REGARDING NON-SOLICITATION.
(1) Subject to Section 4.6, Trimark shall not, directly or indirectly,
through any officer, director, employee, representative (including for
greater certainty any investment banker, lawyer or accountant) or agent
of Trimark or any of its subsidiaries, (i) solicit, initiate, knowingly
encourage or otherwise facilitate (including by way of furnishing
information or entering into any form of agreement, arrangement or
understanding) the initiation of any inquiries or proposals regarding
an Acquisition Proposal, (ii) participate in any discussions or
negotiations regarding any Acquisition Proposal, (iii) approve or
recommend any Acquisition Proposal or (iv) enter into any agreement,
arrangement or understanding related to any Acquisition Proposal.
Notwithstanding the preceding part of this Section 4.5(1) and any other
provision of this Agreement, nothing shall prevent the Board of
Directors of Trimark from considering, participating in any discussions
or negotiations, or entering into a confidentiality agreement and
providing information pursuant to Section 4.5(3) (but subject to
Section 4.6 not approve, recommend or enter into any agreement,
arrangement or understanding), regarding an unsolicited bona fide
written Acquisition Proposal (a) in respect of which any required
financing has been demonstrated to the satisfaction of the Board of
Directors, acting in good faith, to be reasonably likely to be
obtained, (b) that did not otherwise result from a breach of this
Section 4.5, and (c) which the Board of Directors of Trimark has
determined in good faith, after consultation with financial advisors
and with outside counsel, is a Superior Proposal. Trimark shall, and
shall cause the officers, directors, employees, representatives and
agents of Trimark and its subsidiaries to, cease immediately all
discussions and negotiations regarding any proposal that constitutes,
or may reasonably be expected to lead to, an Acquisition
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Proposal, and request the return or destruction of all information
provided in connection therewith. For greater certainty, a bona fide
written Acquisition Proposal shall not be considered to be solicited
solely because it is proposed by a party with whom Trimark had held
discussions or negotiations with respect to a potential Acquisition
Proposal prior to May 5, 2000.
(2) Trimark shall forthwith notify AMVESCAP, at first orally and then in
writing, of any Acquisition Proposal and any inquiry that could lead to
an Acquisition Proposal, or any amendments to the foregoing, or any
request for non-public information relating to Trimark or any Trimark
Material Subsidiary in connection with an Acquisition Proposal or for
access to the properties, books or records of Trimark or any Trimark
Material Subsidiary by any Person that informs Trimark or such Trimark
Material Subsidiary that it is considering making, or has made, an
Acquisition Proposal. Such notice shall include a description of the
material terms and conditions of any proposal, the identity of the
Person making such proposal, inquiry or contact and provide such other
details of the proposal, inquiry or contact as AMVESCAP may reasonably
request. Trimark shall keep AMVESCAP informed of the status including
any change to the material terms of any such Acquisition Proposal or
inquiry.
(3) If Trimark receives a request for material non-public information from
a Person who has made an unsolicited bona fide written Acquisition
Proposal and Trimark is permitted, subject to and as contemplated under
the second sentence of Section 4.5(1), to negotiate the terms of such
Acquisition Proposal, then, and only in such case, the Board of
Directors of Trimark may, subject to the execution by such Person of a
confidentiality agreement containing employee non-solicitation and
standstill provisions substantially similar to those contained in the
confidentiality agreement then in effect between Trimark and AMVESCAP
(which standstill provision may be waived by the Board of Directors of
Trimark in its sole and unfettered discretion), provide such Person
with access to information regarding Trimark; provided, however, that
the Person making the Acquisition Proposal shall not be precluded under
such confidentiality agreement from making the Acquisition Proposal
(or, subject to Section 4.6(4), any material amendment thereto) and
provided further that Trimark sends a copy of any such confidentiality
agreement to AMVESCAP promptly upon its execution and AMVESCAP is
provided with a list of or copies of the information provided to such
Person and immediately provided with access to similar information to
which such Person was provided.
(4) Trimark shall ensure that its officers, directors and employees and its
subsidiaries and their officers, directors and employees and any
financial advisors or other advisors or representatives retained by it
or its subsidiaries
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are aware of the provisions of this Section 4.5, and it shall be
responsible for any breach of this Section 4.5 by its and its
subsidiaries' officers, directors, employees, representatives or
agents.
SECTION 4.6 NOTICE BY TRIMARK OF SUPERIOR PROPOSAL DETERMINATION.
(1) Notwithstanding Sections 4.5(1), (2) and (3), but subject to AMVESCAP's
rights under Section 6.3(3)(c) and Section 6.4, Trimark may accept,
approve, recommend or enter into any agreement, understanding or
arrangement in respect of a Superior Proposal if, and only if: (i) it
has provided AMVESCAP with a copy of the Superior Proposal document;
and (ii) four calendar days (the "MATCH PERIOD") shall have elapsed
from the later of the date AMVESCAP received written notice ("SECTION
4.6 NOTICE") advising AMVESCAP that Trimark's Board of Directors has
resolved, subject only to compliance with this Section 4.6, to accept,
approve, recommend or enter into an agreement, understanding or
arrangement in respect of such Superior Proposal, specifying the terms
and conditions of such Superior Proposal and identifying the Person
making such Superior Proposal and the date AMVESCAP received a copy of
such Superior Proposal. In the event that Trimark provides AMVESCAP
with Section 4.6 Notice on a date which is less than four calendar days
prior to the Trimark Meeting, Trimark shall adjourn the Trimark Meeting
to a date which is not less than four calendar days and not more than
10 calendar days after the date of the Section 4.6 Notice. Any
information provided by Trimark to AMVESCAP pursuant to this Section
4.6 or pursuant to Section 4.5 shall constitute "Information" under
Section 4.7(2).
(2) During a Match Period, Trimark agrees that AMVESCAP shall have the
right, but not the obligation, to offer to amend the terms of this
Agreement. The Board of Directors of Trimark will review any offer by
AMVESCAP to amend the terms of this Agreement in good faith in order to
determine, in its discretion in the exercise of its fiduciary duties,
whether AMVESCAP's offer upon acceptance by Trimark would result in
such Superior Proposal ceasing to be a Superior Proposal. If the Board
of Directors of Trimark so determines, it will enter into an amended
agreement with AMVESCAP reflecting AMVESCAP's amended proposal. If the
Board of Directors of Trimark continues to believe, in good faith,
after consultation with its financial advisors and outside counsel,
that such Superior Proposal remains a Superior Proposal and therefore
rejects AMVESCAP's offer to amend the terms of this Agreement, Trimark
may approve, recommend, accept or enter into an agreement,
understanding or arrangement with respect to the Superior Proposal
provided that such acceptance or agreement does not obligate Trimark or
any other Person to seek to interfere with the completion of the
Arrangement or impose any "break", "hello" or other fees or options or
rights to acquire assets or securities, or any other obligations that
would survive the
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Effective Date, on Trimark or any subsidiary unless and until this
Agreement is terminated in accordance with its terms. In addition, in
such circumstances, Trimark may proceed with such approvals, consents,
filings of or required by Governmental Entities and such other Persons
as Trimark shall consider appropriate in order to consummate such
Superior Proposal, provided that such activity does not interfere with
the completion of the Arrangement.
(3) Subject to Section 4.6(1), nothing contained in this Section 4.6 shall
limit in any way the obligation of Trimark to convene and hold the
Trimark Meeting in accordance with Section 2.1 of this Agreement.
(4) Trimark also acknowledges and agrees that each successive material
amendment to any Acquisition Proposal shall constitute a new
Acquisition Proposal for purposes of the requirement under clause (ii)
of Section 4.6(1) to initiate an additional Section 4.6 Notice and
Match Period.
SECTION 4.7 ACCESS TO INFORMATION.
(1) Subject to Sections 4.7(2) and applicable Laws, upon reasonable notice,
Trimark shall (and shall cause each of its subsidiaries to) afford
AMVESCAP's officers, employees, counsel, accountants and other
authorized representatives and advisors ("REPRESENTATIVES") access,
during normal business hours from the date hereof and until the earlier
of the Effective Date or the termination of this Agreement, to its and
its subsidiaries' and the Funds' properties, books, contracts and
records as well as to its management personnel, and, during such
period, Trimark shall (and shall cause each of its subsidiaries and the
Funds to) furnish promptly to AMVESCAP all information concerning
Trimark's and its subsidiaries' and the Funds' businesses, properties
and personnel as AMVESCAP may reasonably request. Subject to Sections
4.7(2) and applicable Laws, upon reasonable notice, AMVESCAP shall
afford Trimark's Representatives access, upon reasonable notice and
during normal business hours from the date hereof and until the earlier
of the Effective Date or the termination of this Agreement, to such of
AMVESCAP's management personnel as AMVESCAP may determine, acting
reasonably, and, during such period, AMVESCAP shall furnish promptly to
Trimark all information respecting material changes in AMVESCAP's and
AMVESCAP Material Subsidiaries' businesses, properties and personnel as
Trimark may reasonably request.
(2) Each of AMVESCAP and Trimark acknowledges that certain information
provided to it under Section 4.7(1) above will be non-public and/or
proprietary in nature (the "INFORMATION") and will be subject to the
terms of the Confidentiality Agreement. For greater certainty, the
provisions of the
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Confidentiality Agreement shall survive the termination of this
Agreement, provided that the Confidentiality Agreement shall terminate
at the Effective Time notwithstanding anything to the contrary
contained therein.
SECTION 4.8 CLOSING MATTERS.
Each of AMVESCAP and Trimark shall deliver, at the closing of the
transactions contemplated hereby, such customary certificates, resolutions and
other closing documents as may be required by the other party hereto, acting
reasonably.
SECTION 4.9 INDEMNIFICATION.
(1) AMVESCAP agrees that all rights to indemnification or exculpation now
existing in favour of the directors or officers of Trimark or any
subsidiary as provided in its articles of incorporation or by-laws
thereof or in any agreement in effect on the date hereof shall survive
the Arrangement and shall continue in full force and effect for a
period of not less than seven years from the Effective Time.
(2) There shall be maintained in effect, for not less than seven years from
the Effective Time, coverage substantially equivalent to that in effect
under the current policies of the directors' and officers' liability
insurance maintained by Trimark or any of its subsidiaries, as the case
may be, which is no less advantageous, and with no gaps or lapses in
coverages with respect to matters occurring prior to the Effective
Time. Alternatively, at AMVESCAP's option, it may cause Trimark to
purchase "run-off" directors' and officers' liability insurance
providing coverage substantially as favourable to such directors and
officers as that in effect under such current policies to cover prior
events during such seven year period or the balance thereof.
ARTICLE 5
CONDITIONS
SECTION 5.1 MUTUAL CONDITIONS PRECEDENT.
The respective obligations of the parties hereto to complete the
transactions contemplated by this Agreement shall be subject to the
satisfaction, on or before the Effective Date, of the following conditions
precedent, each of which may only be waived by the mutual consent of AMVESCAP
and Trimark:
(a) the Arrangement shall have been approved at the Trimark
Meeting by not less than two-thirds of the votes cast by the
Trimark Securityholders who are represented at the Trimark
Meeting;
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(b) the Arrangement shall have been approved at the Trimark
Meeting in accordance with any conditions in addition to those
set out in Section 5.1(a) which may be imposed by the Interim
Order;
(c) the Interim Order and the Final Order shall each have been
obtained in form and on terms satisfactory to each of Trimark
and AMVESCAP, acting reasonably, and shall not have been set
aside or modified in a manner unacceptable to such parties on
appeal or otherwise;
(d) the AMVESCAP Shareholders shall have approved the AMVESCAP
Resolution at the AMVESCAP Meeting by the requisite levels
required by applicable Laws;
(e) there shall not be in force any final and non-appealable
injunction, order or decree restraining or enjoining the
consummation of the transactions contemplated by this
Agreement and there shall be no proceeding (other than an
appeal made in connection with the Arrangement), of a judicial
or administrative nature or otherwise, brought by a
Governmental Entity in progress or threatened that relates to
or results from the transactions contemplated by this
Agreement that would, if successful, result in an order or
ruling that would preclude completion of the transactions
contemplated by this Agreement in accordance with the terms
hereof or would otherwise be inconsistent with the Regulatory
Approvals which have been obtained;
(f) this Agreement shall not have been terminated pursuant to
Article 6;
(g) the Exchangeable Shares including those issuable in accordance
with the terms of the AMVESCAP Equity Subordinated Debentures
and the AMVESCAP Equity Subordinated Debentures issuable
pursuant to the Arrangement shall have been conditionally
approved for listing on the Toronto Stock Exchange (or its
successor), the LSE shall have agreed (subject to allotment)
to admit to trading on the LSE the AMVESCAP Ordinary Shares
issuable pursuant to the Arrangement on the Effective Date and
the UKLA shall have agreed (subject to allotment) to admit to
the Official List of the UKLA the AMVESCAP Ordinary Shares
issuable pursuant to the Arrangement on the Effective Date, in
each case, subject to the filing of required documentation and
other usual requirements;
(h) other than the Regulatory Approvals, all consents, waivers,
permits, orders and approvals of any Governmental Entity, and
the expiry of any waiting periods, in connection with, or
required to permit, the consummation of the Arrangement, the
failure of which to obtain or
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the non-expiry of which would constitute a criminal offense,
or would have a Material Adverse Effect on AMVESCAP or
Trimark, as the case may be, shall have been obtained or
received on terms that will not have a Material Adverse Effect
on AMVESCAP and/or Trimark; there shall not be pending or
threatened any suit, action or proceeding by any Governmental
Entity: (i) seeking to prohibit or restrict the acquisition by
AMVESCAP or any of its subsidiaries of any Trimark Common
Shares or Trimark Options, seeking to restrain or prohibit the
consummation of the Plan of Arrangement or seeking to obtain
from Trimark or AMVESCAP any damages directly or indirectly in
connection with the Arrangement, (ii) seeking to prohibit or
materially limit the ownership or operation by AMVESCAP or any
of its subsidiaries of any material portion of the business or
assets of Trimark or any of its subsidiaries or to compel
AMVESCAP or any of its subsidiaries to dispose of or hold
separate any material portion of the business or assets of
Trimark or any of its subsidiaries, (iii) seeking to impose
limitations on the ability of AMVESCAP or any of its
subsidiaries to acquire or hold, or exercise full rights of
ownership of, any Trimark Common Shares or Trimark Options,
including the right to vote the Trimark Common Shares
purchased by them on all matters properly presented to the
shareholders of Trimark, (iv) seeking to prohibit AMVESCAP or
any of its subsidiaries from effectively controlling in any
material respect the business or operations of Trimark or any
of its subsidiaries or (v) which otherwise is reasonably
likely to have a Material Adverse Effect on Trimark or
AMVESCAP; and
(i) the Regulatory Approvals shall have been obtained or satisfied
on terms and conditions satisfactory to AMVESCAP and Trimark
(but only insofar as it would directly affect Trimark
Securityholders) acting reasonably.
SECTION 5.2 ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
AMVESCAP.
(1) The obligations of AMVESCAP to complete the transactions contemplated
by this Agreement shall also be subject to the fulfilment of each of
the following conditions precedent (each of which is for AMVESCAP's
exclusive benefit and may be waived by AMVESCAP):
(a) all covenants of Trimark under this Agreement to be performed
on or before the Effective Date shall have been duly performed
by Trimark in all material respects;
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(b) the representations and warranties of Trimark shall have been
true and correct in all material respects on the date hereof
and shall be true and correct in all material respects as of
the Effective Date as if made on and as of such date (except
to the extent such representations and warranties speak solely
as of an earlier date, in which event such representations and
warranties shall be true and correct in all material respects
as of such earlier date, or except as affected by transactions
contemplated or permitted by this Agreement) and AMVESCAP
shall have received a certificate of Trimark addressed to
AMVESCAP and dated the Effective Date, signed on behalf of
Trimark by the Chief Executive Officer and the Chief Financial
Officer of Trimark (on Trimark's behalf and without personal
liability in the absence of fraud or fraudulent concealment),
confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall
not have occurred a Material Adverse Change to Trimark;
(d) the Board of Directors of Trimark shall have adopted all
necessary resolutions, and all other necessary corporate
action shall have been taken by Trimark and the subsidiaries
to permit the consummation of the Arrangement;
(e) the transactions contemplated by this Agreement shall have
been approved by unitholders of each of the Funds, to the
extent and in the manner required under the terms of such
Fund's constating documents and material agreements and upon
such terms and conditions as are satisfactory to AMVESCAP,
acting reasonably; and
(f) the holders of Trimark Common Shares representing in excess of
10% of the outstanding Trimark Common Shares shall not have
exercised (and not withdrawn such exercise to the satisfaction
of AMVESCAP by the close of business on the day after the day
of the Trimark Meeting) dissent or similar rights in
connection with the Arrangement.
(2) AMVESCAP may not rely on the failure to satisfy any of the above
conditions precedent if the condition precedent would have been
satisfied but for a default by AMVESCAP in complying with its
obligations hereunder.
SECTION 5.3 ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF TRIMARK.
(1) The obligations of Trimark to complete the transactions contemplated by
this Agreement shall also be subject to the following conditions
precedent (each of which is for the exclusive benefit of Trimark and
may be waived by Trimark):
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(a) all covenants of AMVESCAP under this Agreement to be performed
on or before the Effective Date shall have been duly performed
by AMVESCAP in all material respects;
(b) all representations and warranties of AMVESCAP under this
Agreement shall have been true and correct in all material
respects on the date hereof and shall be true and correct in
all material respects as of the Effective Date as if made on
and as of such date (except to the extent such representations
and warranties speak solely as of an earlier date, in which
event such representations and warranties shall be true and
correct in all material respects as of such earlier date, or
except as affected by transactions contemplated or permitted
by this Agreement) and Trimark shall have received a
certificate of AMVESCAP addressed to Trimark and dated the
Effective Date, signed on behalf of AMVESCAP by two Senior
Officers of AMVESCAP (on its behalf and without personal
liability in the absence of fraud or fraudulent concealment),
confirming the same as at the Effective Date;
(c) the Board of Directors of AMVESCAP shall have adopted all
necessary resolutions, and all other necessary corporate
action shall have been taken by AMVESCAP to permit the
consummation of the Arrangement; and
(d) between the date hereof and the Effective Date, there shall
not have occurred a Material Adverse Change to AMVESCAP.
(2) Trimark may not rely on the failure to satisfy any of the above
conditions precedent if the condition precedent would have been
satisfied but for a material default by Trimark in complying with its
obligations hereunder.
SECTION 5.4 NOTICE AND CURE PROVISIONS.
(1) AMVESCAP and Trimark will give prompt notice to the other of the
occurrence, or failure to occur, at any time from the date hereof until
the Effective 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 the other
party contained herein to be untrue or inaccurate in any
material respect on the date hereof or on the Effective Date;
or
(b) result in the failure in any material respect to comply with
or satisfy any covenant, condition or agreement to be complied
with or satisfied by the other hereunder prior to the
Effective Date.
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(2) Neither AMVESCAP nor Trimark may elect not to complete the transactions
contemplated hereby pursuant to the conditions precedent contained in
Sections 5.1, 5.2 or 5.3, or exercise any termination right arising
therefrom, unless forthwith and in any event prior to the filing of the
Articles of Arrangement for acceptance by the Director, AMVESCAP or
Trimark, as the case may be, has delivered a written notice to the
other specifying in reasonable detail all breaches of covenants,
representations and warranties or other matters which AMVESCAP or
Trimark, as the case may be, are asserting as the basis for the
non-fulfilment of the applicable condition precedent or the exercise of
the termination right, as the case may be. If any such notice is
delivered, provided that Trimark or AMVESCAP, as the case may be, is
proceeding diligently to cure such matter, if such matter is
susceptible to being cured (for greater certainty, except by way of
disclosure in the case of representations and warranties), the other
may not terminate this Agreement as a result thereof until the later of
30 days prior to the Outside Date and the expiration of a period of 30
days from such notice. If such notice has been delivered prior to the
date of the Trimark Meeting and/or the AMVESCAP Meeting, such
meeting(s) shall, unless the parties agree otherwise, be postponed or
adjourned until the expiry of such period. If such notice has been
delivered prior to the making of the application for the Final Order or
the filing of the Articles of Arrangement with the Director, such
application and such filing shall be postponed until the expiry of such
period. For greater certainty, in the event that such matter is cured
within the time period referred to herein without a Material Adverse
Effect on the curing party, this Agreement may not be terminated as a
result of the cured breach.
SECTION 5.5 SATISFACTION OF CONDITIONS.
The conditions precedent set out in Sections 5.1, 5.2 and 5.3 shall be
conclusively deemed to have been satisfied, waived or released when, with the
agreement of AMVESCAP and Trimark, a certificate of arrangement in respect of
the Arrangement is issued by the Director.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT.
This Agreement and the Plan of Arrangement may, at any time and from
time to time before or after the holding of the Trimark Meeting or the AMVESCAP
Meeting but not later than the Effective Date, be amended by mutual written
agreement of the parties hereto, and any such amendment may, subject to
applicable Laws and the Interim Order, without limitation:
41
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(a) change the time for performance of any of the obligations or
acts of the parties;
(b) waive any inaccuracies or modify any representation or
warranty contained herein or in any document delivered
pursuant hereto;
(c) waive compliance with or modify any of the covenants herein
contained and waive or modify performance of any of the
obligations of the parties;
(d) provide for or assist mitigation of any liability for Tax
imposed on any person as a result of this Agreement, the Plan
of Arrangement, and/or any transactions or documents
contemplated therein;
(e) assist in obtaining the final consent of the UK Treasury as
contemplated in Schedule C to this Agreement; and/or
(f) waive compliance with or modify any conditions precedent
herein contained.
SECTION 6.2 MUTUAL UNDERSTANDING REGARDING AMENDMENTS.
The parties agree that if AMVESCAP or Trimark, as the case may be,
propose any amendment or amendments to this Agreement or to the Plan of
Arrangement, the other will act reasonably in considering such amendment and if
the other and its security holders are not prejudiced by reason of any such
amendment the other will co-operate in a reasonable fashion with AMVESCAP or
Trimark, as the case may be, so that such amendment can be effected subject to
applicable Laws and the rights of the security holders.
SECTION 6.3 TERMINATION.
(1) If any condition contained in Sections 5.1 or 5.2 is not satisfied at
or before the Outside Date to the satisfaction of AMVESCAP, acting
reasonably, then AMVESCAP may, subject to Section 5.4 and to Section
5.2(2) in the case of Section 5.2, by notice to Trimark terminate this
Agreement and the obligations of the parties hereunder (except as
otherwise herein provided, including under Section 6.4), but without
detracting from the rights of AMVESCAP arising from any breach by
Trimark but for which the condition would have been satisfied.
(2) If any condition contained in Sections 5.1 or 5.3 is not satisfied at
or before the Outside Date to the satisfaction of Trimark, acting
reasonably, then Trimark may, subject to Section 5.4 and to Section
5.3(2) in the case of Section 5.3, by notice to AMVESCAP terminate this
Agreement and the obligations of the parties hereunder (except as
otherwise herein provided, including under
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Section 6.4), but without detracting from the rights of Trimark arising
from any breach by AMVESCAP but for which the condition would have been
satisfied.
(3) This Agreement may:
(a) be terminated by the mutual agreement of Trimark and AMVESCAP
(for greater certainty, without further action on the part of
the Trimark Securityholders or AMVESCAP Shareholders if
terminated after the holding of the Trimark Meeting or the
AMVESCAP Meeting, as applicable);
(b) be terminated by either Trimark or AMVESCAP if there shall be
passed any Law that makes consummation of the transactions
contemplated by this Agreement illegal or otherwise
prohibited;
(c) be terminated by AMVESCAP if (A) the Board of Directors of
Trimark shall have failed to recommend or shall have
withdrawn, modified or changed in a manner adverse to AMVESCAP
its approval or recommendation of this Agreement or the
Arrangement (unless AMVESCAP shall have suffered a Material
Adverse Change or AMVESCAP shall have made a misrepresentation
at the date hereof or breached its covenant in Section 4.4 (g)
or breached any other covenant under this Agreement in such a
manner that, taking into account Sections 5.3(2) and 5.4,
Trimark would be entitled to rely on the failure of a
condition set forth in Sections 5.3(1)(a), (b) or (c) as a
reason not to complete the Arrangement), or (B) the Board of
Directors of Trimark shall have approved or recommended any
Acquisition Proposal;
(d) be terminated by Trimark if the Board of Directors of AMVESCAP
shall have failed to recommend or shall have withdrawn,
modified or changed in a manner adverse to Trimark its
approval or recommendation of this Agreement, the AMVESCAP
Resolution or the Arrangement;
(e) be terminated by AMVESCAP or Trimark if either Trimark
Securityholder approval or AMVESCAP Shareholder approval shall
not have been obtained by reason of the failure to obtain the
required vote at the Trimark Meeting or the AMVESCAP Meeting,
respectively;
in each case, prior to the Outside Date.
(4) If the Effective Date does not occur on or prior to the Outside Date,
then this Agreement shall terminate.
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(5) If this Agreement is terminated in accordance with the foregoing
provisions of this Section 6.3, no party shall have any further
liability to perform its obligations hereunder except as provided in
Section 6.4 and as otherwise contemplated hereby, and provided that,
subject to Section 6.5, neither the termination of this Agreement nor
anything contained in this Section 6.3(5) shall relieve any party from
any liability for any breach by it of this Agreement, including from
any inaccuracy in its representations and warranties and any
non-performance by it of its covenants made herein.
SECTION 6.4 BREAK AND OTHER FEES.
(1) If:
(a) AMVESCAP shall terminate this Agreement pursuant to Section
6.3(3)(c); or
(b) either Trimark or AMVESCAP shall terminate this Agreement
pursuant to Section 6.3(1) or (2) solely as a result of the
failure to satisfy the conditions specified in either Section
5.1(a) or Section 5.1(b) in circumstances where the requisite
Trimark Securityholder approval has not been obtained at the
Trimark Meeting, and (x) an Acquisition Proposal has been made
or an intention to make an Acquisition Proposal has been
publicly announced by any person other than AMVESCAP prior to
the Trimark Meeting and not withdrawn more than five days
prior to the vote of the Trimark Securityholders and (y)
Trimark enters into an agreement with respect to an
Acquisition Proposal after the date hereof and prior to the
expiration of 18 months following termination of this
Agreement;
then in any such case Trimark shall pay to AMVESCAP $100,000,000 in
immediately available funds to an account designated by AMVESCAP. Such
payment shall be due (A) in the case of a termination specified in
clause (a), within one Business Day after written notice of termination
by AMVESCAP, and (B) in the case of a termination specified in clause
(b) at or prior to the consummation of the transaction referred to
therein. Trimark shall not be obligated to make more than one payment
pursuant to this Section 6.4(1).
(2) If the holders of the Trimark Common Shares shall fail to approve the
Arrangement (unless AMVESCAP shall have suffered a Material Adverse
Change or AMVESCAP shall have made a misrepresentation at the date
hereof or breached its covenant in Section 4.4 (g) or breached any
other covenant under this Agreement in such a manner that, taking into
account Sections 5.3(2) and 5.4, Trimark would be entitled to rely on
the failure of a condition set forth in Sections 5.3(1)(a), (b) or (c)
as a reason not to complete the Arrangement) at the Trimark Meeting,
then, except in the circumstances
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contemplated in Section 6.4(1) above, on the first Business Day
following the termination of this Agreement as a result thereof,
Trimark shall pay to AMVESCAP $5,000,000 in immediately available funds
to an account designated by AMVESCAP. Any payment due under Section
6.4(1) shall be reduced dollar-for-dollar by any payment previously
made under this Section 6.4(2).
(3) If the AMVESCAP Shareholders shall fail to approve the matters related
to the Arrangement put forward for approval (unless Trimark shall have
suffered a Material Adverse Change or Trimark shall have made a
misrepresentation at the date hereof or breached a covenant under this
Agreement in such a manner that, taking into account Section 5.4,
AMVESCAP would be entitled to rely on the failure of a condition set
forth in Sections 5.2(1)(a), (b) or (e) as a reason not to complete the
Arrangement) at the AMVESCAP Meeting, then, except in the circumstances
contemplated in Section 6.4(1) above, on the first Business Day
following the termination of this Agreement as a result thereof,
AMVESCAP shall pay to Trimark $5,000,000 in immediately available funds
to an account designated by Trimark.
SECTION 6.5 EFFECT OF BREAK FEE PAYMENT.
For greater certainty, the parties hereto agree that if Trimark pays to
AMVESCAP amounts required by Section 6.4(1) as a result of the occurrence of any
of the events referenced in Section 6.4(1), AMVESCAP shall have no other remedy
for any breach of this Agreement by Trimark , unless Trimark makes a claim
against AMVESCAP for breach of a provision of this Agreement, in which
circumstances the liability of Trimark to AMVESCAP for damages for claims in
respect of breaches of this Agreement shall be subject to a maximum limit equal
to the liability of AMVESCAP to Trimark for damages for claims in respect of
breaches of this Agreement. For greater certainty, in no event shall Trimark be
required to pay to AMVESCAP, whether pursuant to Section 6.4 or as a result of
any liability of Trimark to AMVESCAP for damages for claims in respect of
breaches by Trimark of this Agreement, in excess of $100,000,000 net of amounts
owing to Trimark for damages for claims in respect of breaches by AMVESCAP of
this Agreement.
SECTION 6.6 REMEDIES.
Subject to Section 6.5, the parties hereto acknowledge and agree that
an award of money damages would be inadequate for any breach of this Agreement
by any party or its representatives and any such breach would cause the
non-breaching party irreparable harm. Accordingly, the parties hereto agree
that, in the event of any breach or threatened breach of this Agreement by one
of the parties, the non-breaching party will also be entitled, without the
requirement of posting a bond or other security, to equitable relief, including
injunctive relief and specific performance. Such remedies will not be the
exclusive remedies for any breach of this
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Agreement but will be in addition to all other remedies available at law or
equity to each of the parties.
ARTICLE 7
GENERAL
SECTION 7.1 NOTICES.
All notices and other communications 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 deemed to be validly given if served personally or by
telecopy, in each case addressed to the particular party at:
(a) If to AMVESCAP, at:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx
XX0X 0X0
Attention: Chairman and Chief Executive Officer
Telecopier No.: (000) 00 000 000 0000
with a copy to:
AMVESCAP
0000 Xxxxxxxxx Xx. X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, General Counsel
Telecopier No.: (000) 000-0000
with a copy to:
Stikeman Elliott
Xxx 00, Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx X. Stransman
Telecopier No.: (000) 000-0000
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(b) If to Trimark at:
Trimark Financial Corporation
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chairman and Chief Executive Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxx
Telecopier No.: (000) 000-0000
or at such other address of which any party may, from time to time, advise the
other parties by notice in writing given in accordance with the foregoing. The
date of receipt of any such notice shall be deemed to be the date of delivery or
telecopying thereof.
SECTION 7.2 ASSIGNMENT.
No party hereto may assign its rights or obligations under this
Agreement or the Arrangement, except that AMVESCAP may assign (provided AMVESCAP
remains jointly and severally liable for its obligations hereunder) all or part
of its rights or obligations to a lender for financing purposes or, with the
consent of Trimark, not to be unreasonably withheld, to a wholly-owned
subsidiary.
SECTION 7.3 BINDING EFFECT.
This Agreement and the Arrangement shall be binding upon and shall
enure to the benefit of the parties hereto and their respective successors and
permitted assigns and no third party shall have any rights hereunder.
SECTION 7.4 WAIVER AND MODIFICATION.
Trimark and AMVESCAP may waive or consent to the modification of, in
whole or in part, any inaccuracy of any representation or warranty made to them
hereunder or in any document to be delivered pursuant hereto and may waive or
consent to the modification of any of the covenants herein contained for their
respective benefit or waive or consent to the modification of any of the
obligations of the other parties hereto. Any waiver or consent to the
modification of any of the
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provisions of this Agreement, to be effective, must be in writing executed by
the party granting such waiver or consent.
SECTION 7.5 FURTHER ASSURANCES.
Each party hereto shall, from time to time, and at all times hereafter,
at the request of the other parties hereto, but without further consideration,
do all such further acts and execute and deliver all such further documents and
instruments as shall be reasonably required in order to fully perform and carry
out the terms and intent hereof.
SECTION 7.6 EXPENSES.
(1) Subject to Section 6.4, the parties agree that all out-of-pocket
expenses of the parties relating to the Arrangement and the
transactions contemplated hereby, including legal fees, accounting
fees, financial advisory fees, regulatory filing fees, stock exchange
fees, all disbursements of advisors and printing and mailing costs,
shall be paid by the party incurring such expenses.
(2) Trimark represents and warrants to AMVESCAP that, except for any
amounts owing to those financial advisers referred to in Section
(c)(iii) of Schedule G by Trimark pursuant to and in accordance with
the terms of written and executed agreements existing as at the date
hereof and disclosed to AMVESCAP on or prior to the date hereof, no
broker, finder or investment banker is or will be entitled to any
brokerage, finder's or other fee or commission from Trimark or any
subsidiary of Trimark in connection with the transactions contemplated
hereby or by the Arrangement.
SECTION 7.7 CONSULTATION.
AMVESCAP and Trimark agree to consult with each other as to the general
nature of any news releases or public statements with respect to this Agreement
or the Arrangement, and, subject to applicable Laws to use their respective
reasonable efforts not to issue any news releases or public statements
inconsistent with the results of such consultations. Subject to applicable Laws,
each party shall use its reasonable efforts to enable the other parties to
review and comment on all such news releases prior to the release thereof. The
parties agree to issue jointly the news release in the agreed form with respect
to this Arrangement as soon as practicable following the execution of this
Agreement. AMVESCAP and Trimark also agree to consult with each other in
preparing and making any filings and communications in connection with any
Regulatory Approvals and in seeking any third party consents under leases, joint
ventures or other agreements.
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SECTION 7.8 GOVERNING LAWS.
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein
and shall be treated in all respects as a Ontario contract. Each party hereby
irrevocably attorns to the jurisdiction of the courts of the Province of Ontario
in respect of all matters arising under or in relation to this Agreement.
SECTION 7.9 TIME OF ESSENCE.
Time shall be of the essence in this Agreement.
SECTION 7.10 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be 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 written above.
AMVESCAP PLC
By: /s/ Xxxxxx X. XxXxxxxxxx
--------------------------
Authorized Signing Officer
TRIMARK FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Krembil
--------------------------
Authorized Signing Officer
49
SCHEDULE A
ARRANGEMENT RESOLUTION
SPECIAL RESOLUTION OF THE TRIMARK SECURITYHOLDERS
BE IT RESOLVED THAT:
1. The arrangement (the "ARRANGEMENT") under Section 182 of the Business
Corporations Act (Ontario) (the "OBCA") involving Trimark Financial
Corporation ("TRIMARK"), as more particularly described and set forth
in the Management Information Circular (the "CIRCULAR") of Trimark
accompanying the notice of this meeting (as the Arrangement may be or
may have been modified or amended) is hereby authorized, approved and
adopted.
2. The plan of arrangement (the "PLAN OF ARRANGEMENT") involving Trimark,
the full text of which is set out as Schedule B to the Merger Agreement
(the "MERGER AGREEMENT") made between AMVESCAP PLC and Trimark (as the
Plan of Arrangement may be or may have been modified or amended) is
hereby authorized, approved and adopted.
3. Notwithstanding that this resolution has been passed (and the
Arrangement adopted) by the shareholders of Trimark or that the
Arrangement has been approved by the Superior Court of Justice
(Ontario), the directors of Trimark are hereby authorized and empowered
(a) to amend the Merger Agreement or the Plan of Arrangement to the
extent permitted by the Merger Agreement, and (b) not to proceed with
the Arrangement without further approval of the shareholders of
Trimark, but only if the Merger Agreement is terminated in accordance
with Article 6 thereof.
4. Any officer or director of Trimark is hereby authorized and directed
for and on behalf of Trimark to execute, under the seal of Trimark or
otherwise, and to deliver articles of arrangement and such other
documents as are necessary or desirable to the Director under the OBCA
in accordance with the Merger Agreement for filing.
5. Any officer or director of Trimark is hereby authorized and directed
for and on behalf of Trimark to execute or cause to be executed, under
the seal of Trimark or otherwise, and to deliver or cause to be
delivered, all such other documents and instruments and to perform or
cause to be performed all such other acts and things as in such
person's opinion may be necessary or desirable to give full effect to
the foregoing resolution and the matters authorized hereby, such
determination to be conclusively evidenced by the
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execution and delivery of such document, agreement or instrument or the
doing of any such act or thing.
51
SCHEDULE B
PLAN OF ARRANGEMENT
UNDER SECTION 182
OF THE BUSINESS CORPORATIONS ACT (ONTARIO)
ARTICLE 1
INTERPRETATION
SECTION 1.1 DEFINITIONS
In this Plan of Arrangement, unless there is something in the subject
matter or context inconsistent therewith, the following terms shall have the
respective meanings set out below and grammatical variations of such terms shall
have corresponding meanings:
"AFFILIATE" has the meaning ascribed thereto in the Securities Act.
"AGENT" means CIBC Mellon Trust Company at its offices set out in the
Letter of Transmittal and Election Form and the Holdco Letter of
Transmittal and Election Form.
"AGGREGATE AMOUNT OF CASH" means the aggregate amount of cash that
would be payable to Holdco Shareholders and to holders of Trimark
Common Shares pursuant to sections 2.2(a) and 2.2(b) before giving
effect to the pro-ration provisions of section 2.2(c).
"AGGREGATE NUMBER OF SHARES" means the aggregate number of Exchangeable
Shares and AMVESCAP Ordinary Shares that would be issuable to Holdco
Shareholders and to holders of Trimark Common Shares pursuant to
sections 2.2(a) and 2.2(b) after giving effect to the pro-ration
provisions of section 2.2(c)(i) but before giving effect to the
pro-ration provisions of section 2.2(c)(iii).
"AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES" means the aggregate
principal amount of Debentures that would be issuable to Holdco
Shareholders and to holders of Trimark Common Shares pursuant to
sections 2.2(a) and 2.2(b) after giving effect to the pro-ration
provisions of section 2.2(c)(ii) but before giving effect to the
pro-ration provisions of section 2.2(c)(i).
"AMALCO" means the corporation formed on the amalgamation of Trimark
and all of the Holding Companies.
"AMVESCAP" means AMVESCAP PLC, a corporation existing under the laws of
England.
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"AMVESCAP CONTROL TRANSACTION" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"AMVESCAP ORDINARY SHARES" means the ordinary shares in the capital of
AMVESCAP.
"ARRANGEMENT" means an arrangement under section 182 of the OBCA on the
terms and subject to the conditions set out in this Plan of
Arrangement, subject to any amendments or variations thereto made in
accordance with section 6.1 of the Merger Agreement or Article 6 or
made at the direction of the Court.
"ARRANGEMENT RESOLUTION" means the special resolution of the Trimark
Securityholders, to be substantially in the form and content of
Schedule A annexed to the Merger Agreement.
"ARTICLES OF ARRANGEMENT" means the articles of arrangement of Trimark
in respect of the Arrangement that are required by the OBCA to be sent
to the Director after the Final Order is made.
"BUSINESS DAY" means any day on which commercial banks are generally
open for business in Toronto, Ontario and London, England, other than a
Saturday, a Sunday or a day observed as a holiday in Toronto, Ontario
or in London, England under applicable laws.
"CALLCO" means AVZ Callco Inc., a company existing under the laws of
Nova Scotia, which is a wholly-owned subsidiary of AMVESCAP.
"CANADIAN DOLLAR EQUIVALENT" means in respect of an amount expressed in
a currency other than Canadian dollars (the "FOREIGN CURRENCY AMOUNT")
at any date the product obtained by multiplying:
(a) the Foreign Currency Amount, by
(b) the noon spot exchange rate on such date for such foreign
currency expressed in Canadian dollars as reported by the Bank of
Canada or, in the event such spot exchange rate is not available,
such spot exchange rate on such date for such foreign currency
expressed in Canadian dollars as may be deemed by the board of
directors of AMVESCAP to be appropriate for such purpose.
"CLOSING PRICE" means, in respect of an AMVESCAP Ordinary Share, the
weighted average of the Canadian Dollar Equivalent of the trading
prices of the AMVESCAP Ordinary Shares on the LSE for a period of five
consecutive
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trading days ending on the day that is three Business Days prior
to the Effective Date.
"CLOSING PRICE RATIO" means the fraction the numerator of which is the
Closing Price of an AMVESCAP Ordinary Share and the denominator of
which is Cdn. $21.5078.
"COMPANIES ACT" means the Companies Act (Nova Scotia), as amended.
"CONSIDERATION PACKAGE" has the meaning ascribed thereto in section
2.2(b).
"COURT" means the Superior Court of Justice (Ontario).
"CURRENT MARKET PRICE" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"DEBENTURES" means the equity subordinated debentures of Exchangeco,
containing the terms ascribed thereto in Schedule F annexed to the
Merger Agreement.
"DIRECTOR" means the Director appointed pursuant to section 278 of the
OBCA.
"DISSENT RIGHTS" has the meaning ascribed thereto in section 3.1.
"DISSENTING SHAREHOLDER" means a holder of Trimark Common Shares who
dissents in respect of the Arrangement in strict compliance with the
Dissent Rights.
"DIVIDEND AMOUNT" means an amount equal to, and in full satisfaction
of, all declared and unpaid dividends on an Exchangeable Share held by
a holder on any dividend record date which occurred prior to the date
of purchase of such share by Callco from such holder.
"EFFECTIVE DATE" means the date shown on the certificate of arrangement
to be issued by the Director under the OBCA giving effect to the
Arrangement.
"EFFECTIVE TIME" means 12:01 a.m. on the Effective Date.
"ELECTED" means elected in a duly completed Letter of Transmittal and
Election Form or Holdco Letter of Transmittal and Election Form
deposited with the Agent no later than the Election Deadline and,
except where the term "election" is used with respect to elections and
election forms under the Tax Act and provincial tax law, "ELECTS" and
"ELECTION" shall have corresponding meanings.
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"ELECTION DEADLINE" means 5:00 p.m. (local time) at the place of
deposit on the date which is two Business Days prior to the date of the
Trimark Meeting.
"EXCHANGE RATIO" means, subject to adjustment, if any, as provided
herein, 1.25536 divided by the Closing Price Ratio; provided that if
the Closing Price Ratio is less than 0.875, the Closing Price Ratio
shall be deemed for purposes of this definition to be 0.875 and if the
Closing Price Ratio is greater than 1.125 the Closing Price Ratio shall
be deemed for purposes of this definition to be 1.125.
"EXCHANGEABLE SHARES" means the non-voting exchangeable shares in the
capital of Exchangeco, having the rights, privileges, restrictions and
conditions set out in the Exchangeable Share Provisions.
"EXCHANGEABLE SHARE PROVISIONS" means the rights, privileges,
restrictions and conditions attaching to the Exchangeable Shares, which
rights, privileges, restrictions and conditions shall be as set out in
Appendix 1 hereto.
"EXCHANGEABLE SHARE VOTING EVENT" has the meaning ascribed thereto in
the Exchangeable Share Provisions.
"EXCHANGECO" means AMVESCAP Inc., a corporation existing under the laws
of Nova Scotia, which is a wholly-owned subsidiary of AMVESCAP.
"EXCLUDED TRIMARK COMMON SHARES" means Trimark Common Shares held by
Persons who, at the Effective Time, are Dissenting Shareholders and
Trimark Common Shares, if any, held by AMVESCAP or any Affiliate
thereof (including any Holding Company that becomes an Affiliate of
AMVESCAP pursuant to section 2.2(a)).
"FINAL ORDER" means the final order of the Court approving the
Arrangement as such order may be amended by the Court at any time prior
to the Effective Date or, if appealed, then, unless such appeal is
withdrawn or denied, as affirmed.
"GOVERNMENT ENTITY" means any (a) multinational, federal, provincial,
state, regional, municipal, local or other government, governmental or
public department, central bank, court, tribunal, arbitral body,
commission, board, bureau or agency, domestic or foreign, (b)
self-regulatory organization or stock exchange, (c) any subdivision,
agent, commission, board, or authority of any of the foregoing, or (d)
any quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of
the foregoing.
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"HOLDCO AGREEMENT" means an agreement satisfactory to AMVESCAP, in its
sole discretion, pursuant to which all of the holders of shares in the
capital of a Holding Company agree to, among other things, transfer all
of the shares in the capital of such company to Exchangeco under the
Arrangement and agree to deposit with the Agent prior to the Election
Deadline a duly completed Holdco Letter of Transmittal and Election
Form.
"HOLDCO ALTERNATIVE" means the option of all of the holders of shares
in the capital of a holding company which is a holder of Trimark Common
Shares to enter into a Holdco Agreement with AMVESCAP and to transfer
all of the issued and outstanding shares in the capital of such company
to Exchangeco under the Arrangement and to receive the consideration
provided for in section 2.2.
"HOLDCO LETTER OF TRANSMITTAL AND ELECTION FORM" means the letter of
transmittal and election form for use by Holdco Shareholders.
"HOLDCO SHARES" means, in respect of a Holding Company, all of the
issued and outstanding shares in the capital of such Holding Company.
"HOLDCO SHAREHOLDERS" means, in respect of a Holding Company, all of
the holders of the Holdco Shares of such Holding Company.
"HOLDERS" means, when used with reference to any shares or options, the
holders of such shares or options, respectively, shown from time to
time in the register maintained by or on behalf of the applicable
corporation in respect thereof.
"HOLDING COMPANY" means a company which is a holder of Trimark Common
Shares and in respect of which all of the holders of shares in the
capital of such company have validly exercised the Holdco Alternative
and duly completed and deposited with the Agent prior to the Election
Deadline a Holdco Letter of Transmittal and Election Form.
"INTERIM ORDER" means the interim order of the Court, as the same may
be amended, in respect of the Arrangement, as contemplated by section
2.3 of the Merger Agreement.
"LETTER OF TRANSMITTAL AND ELECTION FORM" means the letter of
transmittal and election form for use by holders of Trimark Common
Shares (other than Holding Companies), in the form accompanying the
Trimark Circular.
"LIQUIDATION AMOUNT" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
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"LIQUIDATION CALL PURCHASE PRICE" has the meaning ascribed thereto in
section 5.1(1).
"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in section
5.1(1).
"LIQUIDATION DATE" has the meaning ascribed thereto in the Exchangeable
Share Provisions.
"LSE" means the London Stock Exchange plc or its successors.
"MAXIMUM CASH CONSIDERATION" means the amount equal to Cdn.$7.50 times
the Trimark Shares Outstanding.
"MAXIMUM DEBENTURE CONSIDERATION" means the amount equal to Cdn.$13.00
times the Trimark Shares Outstanding, rounded down to the nearest
Cdn.$1,000.
"MAXIMUM NUMBER OF AMVESCAP ORDINARY SHARES" means the number equal to
the Maximum Number of Shares times the aggregate number of AMVESCAP
Ordinary Shares that would be issuable to Holdco Shareholders and to
holders of Trimark Common Shares pursuant to sections 2.2(a) and 2.2(b)
before giving effect to the pro-ration provisions of section 2.2(c),
divided by the Aggregate Number of Shares.
"MAXIMUM NUMBER OF EXCHANGEABLE SHARES" means the number equal to the
Maximum Number of Shares times the aggregate number of Exchangeable
Shares that would be issuable to Holdco Shareholders and to holders of
Trimark Common Shares pursuant to sections 2.2(a) and 2.2(b) before
giving effect to the pro-ration provisions of section 2.2(c), divided
by the Aggregate Number of Shares.
"MAXIMUM NUMBER OF SHARES" means the number equal to the Exchange Ratio
times the fraction the numerator of which is the difference between (i)
the amount equal to Cdn. $19.50 times the Trimark Shares Outstanding
and (ii) the aggregate principal amount of Debentures issuable under
the Arrangement (for greater certainty, after giving effect to the
pro-ration provisions of section 2.2 (c)(i)), and the denominator of
which is Cdn. $27.00, rounded down to the nearest whole number.
"MERGER AGREEMENT" means the amended and restated merger agreement made
as of May 9, 2000 between AMVESCAP and Trimark, as may be further
amended, supplemented and/or restated in accordance therewith prior to
the Effective Date, providing for, among other things, the Arrangement.
"OBCA" means the Business Corporations Act (Ontario), as amended.
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"PERSON" includes any individual, firm, partnership, limited
partnership, joint venture, venture capital fund, limited liability
company, unlimited liability company, association, trust, trustee,
executor, administrator, legal personal representative, estate, group,
body corporate, corporation, unincorporated association or
organization, Governmental Entity, syndicate or other entity.
"REDEMPTION CALL PURCHASE PRICE" has the meaning ascribed thereto in
section 5.2(a).
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in section
5.2(a).
"REDEMPTION DATE" has the meaning ascribed thereto in the Exchangeable
Share Provisions.
"REPLACEMENT OPTION" has the meaning ascribed thereto in section
2.2(d).
"SECURITIES ACT" means the Securities Act (Ontario) and the rules,
regulations and policies made thereunder, as amended.
"SPECIAL VOTING SHARE" means the Special Voting Share of AMVESCAP
having substantially the rights, privileges, restrictions and
conditions described in the Voting and Exchange Trust Agreement.
"SHARE FRACTION" has the meaning ascribed thereto in section 2.2(b)
"STAMP TAXES" means all stamp, registration and transfer taxes and
duties or their equivalents in all jurisdictions where such taxes and
duties are payable as a result of any of the transactions contemplated
by this Plan of Arrangement including, without limitation, United
Kingdom stamp duty and stamp duty reserve tax.
"SUBSIDIARY" means, with respect to a specified body corporate, any
body corporate of which more than 50% of the outstanding shares
ordinarily entitled to elect a majority of the board of directors
thereof (whether or not shares of any other class or classes shall or
might be entitled to vote upon the happening of any event or
contingency) are at the time owned directly or indirectly by such
specified body corporate and shall include any body corporate,
partnership, joint venture or other entity over which it exercises
direction or control or which is in a like relation to a subsidiary.
"TAX ACT" means the Income Tax Act (Canada) and the rules, regulations
and policies made thereunder, as amended.
"TRANSFER AGENT" has the meaning ascribed thereto in section 5.1(2).
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"TRIMARK" means Trimark Financial Corporation, a corporation existing
under the laws of Ontario.
"TRIMARK CIRCULAR" means the management information circular, and
accompanying notice of the Trimark Meeting and including all appendices
thereto, to be sent to Trimark Securityholders in connection with the
Trimark Meeting.
"TRIMARK COMMON SHARES" means the outstanding common shares in the
capital of Trimark.
"TRIMARK MEETING" means the annual and special meeting of Trimark
Securityholders, including any adjournment or postponement thereof, to
be called and held in accordance with the Interim Order to consider the
Arrangement.
"TRIMARK MEETING DATE" means the date of the Trimark Meeting.
"TRIMARK OPTIONS" means the Trimark Common Share purchase options
granted under the Trimark Stock Option Plan.
"TRIMARK SECURITYHOLDERS" means the holders of Trimark Common Shares
and Trimark Options.
"TRIMARK SHARES OUTSTANDING" means the number of Trimark Common Shares
outstanding at the Effective Time.
"TRIMARK STOCK OPTION PLAN" means the Executive Stock Option Plan
established by Trimark's board of directors on February 25, 1992, as
amended.
"TRUSTEE" means the trustee to be chosen by AMVESCAP, acting
reasonably, to act as trustee under the Voting and Exchange Trust
Agreement, being a corporation organized and existing under the laws of
Canada and authorized to carry on the business of a trust company in
all the provinces of Canada, and any successor trustee appointed under
the Voting and Exchange Trust Agreement.
"UKLA" means the Financial Services Authority in its capacity as the
competent authority for the purposes of Part IV of the Financial
Services Xxx 0000 of the United Kingdom (or any successor Act).
"VOTING AND EXCHANGE TRUST AGREEMENT" means an agreement to be made
between AMVESCAP, Exchangeco and the Trustee in connection with the
Plan of Arrangement substantially in the form and content of Schedule E
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annexed to the Merger Agreement, with such changes thereto as the
parties to the Merger Agreement, acting reasonably, may agree.
SECTION 1.2 INTERPRETATION NOT AFFECT BY HEADINGS, ETC.
The division of this Plan of Arrangement into Articles, Sections and
other portions and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation hereof. Unless
otherwise indicated, all references to an "Article" or "Section" followed by a
number and/or a letter refer to the specified Article or Section of this Plan of
Arrangement. The terms "this Plan of Arrangement", "hereof", "herein" and
"hereunder" and similar expressions refer to this Plan of Arrangement (including
the Appendix hereto) and not to any particular Article, Section or other portion
hereof and include any agreement or instrument supplementary or ancillary
hereto.
SECTION 1.3 NUMBER, ETC.
Unless the context otherwise requires, words importing the singular
shall include the plural and vice versa and words importing any gender shall
include all genders.
ARTICLE 2
ARRANGEMENT
SECTION 2.1 BINDING EFFECT
This Plan of Arrangement will become effective at, and be binding at
and after, the Effective Time on (i) Trimark, (ii) AMVESCAP, (iii) Callco, (iv)
Exchangeco, (v) each Holding Company, (vi) all holders and all beneficial
holders of Trimark Common Shares and Trimark Options, (vii) all holders and all
beneficial holders of Exchangeable Shares and Debentures from time to time, and
(viii) all Holdco Shareholders.
SECTION 2.2 ARRANGEMENT
Commencing at the Effective Time, the following shall occur and shall
be deemed to occur in the following order without any further act or formality:
(a) with respect to each Holding Company, its Holdco Shares will be
transferred by its Holdco Shareholders, without any further act
or formality on their part, and free and clear of all liens,
claims and encumbrances, to Exchangeco in exchange for the
consideration that would have been received by such Holding
Company pursuant to sections 2.2(b) and 2.2(c) if such Holding
Company had deposited with the Agent prior to the Election
Deadline a duly completed Letter of Transmittal and Election Form
specifying the same elections as set out
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in the Holdco Letter of Transmittal and Election Form deposited
by such Holding Company's Holdco Shareholders, and the names of
its Holdco Shareholders will be removed from the register of
holders of such Holding Company and, subject to Article 4, added
to the register of holders of the securities, if any, comprising
all or part of the consideration received by such Holdco
Shareholders for such transfer and Exchangeco will be recorded as
the registered holder of such Holdco Shares so transferred and
will be deemed to be the legal and beneficial owner of such
Holdco Shares;
(b) subject to the pro-ration adjustments set out in section 2.2(c),
each Trimark Common Share (other than an Excluded Trimark Common
Share) will be transferred to, and acquired by, Exchangeco,
without any further act or formality on the part of the holder of
Trimark Common Shares or Exchangeco and free and clear of all
liens, claims and encumbrances, in exchange for, at the election
(or deemed election) of the holder of Trimark Common Shares
either:
(i) Cdn. $27.00 of principal amount of Debentures;
(ii) Cdn. $27.00 in cash;
(iii) such number of fully paid and non-assessable Exchangeable
Shares as is equal to the Exchange Ratio;
(iv) such number of fully paid AMVESCAP Ordinary Shares as is
equal to the Exchange Ratio; or
(v) a combination of the foregoing (a "CONSIDERATION PACKAGE")
with the aggregate value of the cash portion and the
Debenture portion (as determined below) to be less than or
equal to Cdn. $27.00 and the total number of Exchangeable
Shares and/or AMVESCAP Ordinary Shares (if any) as
determined below;
payable, in each case, in accordance with Article 4, and the name
of each such holder of Trimark Common Shares will be removed from
the register of holders of Trimark Common Shares and added to the
register of holders of the securities, if any, comprising all or
part of the consideration to be received by such holder for such
transfer, and Exchangeco will be recorded as the registered
holder of the Trimark Common Shares so transferred and will be
deemed to be the legal and beneficial owner of such Trimark
Common Shares.
For greater certainty, the consideration components of each
Consideration Package (if any) received by any holder of Trimark
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Common Shares or any Holdco Shareholder, after taking into
account the pro-rations pursuant to section 2.2(c), shall be
allocated as consideration for each Trimark Common Share or
Holdco Share, as the case may be, on a pro rata basis unless such
holder of Trimark Common Shares notifies Exchangeco in writing
(at the time such holder deposits its Letter of Transmittal and
Election Form with the Agent) that it wishes to segregate the
components of the Consideration Package to different Trimark
Common Shares owned by such holder in the manner set out in such
notice.
For the purpose of determining the composition of the
Consideration Package to be received by a holder of Trimark
Common Shares or by a Holdco Shareholder, after taking into
account the prorations pursuant to section 2.2(c), (A) the cash
portion (if any) shall be valued as cash, (B) the Debenture
portion (if any) shall be valued at par, and (C) the total
Exchangeable Share and/or AMVESCAP Ordinary Share portion (if
any) shall be comprised of that number of shares as is equal to
the Share Fraction multiplied by the Exchange Ratio, where the
"SHARE FRACTION" means the fraction the numerator of which is
equal to $27.00 less the value of the cash portion and the value
of the Debenture portion forming part of such Consideration
Package, and the denominator of which is $27.00.
If a holder of Trimark Common Shares (other than Excluded Trimark
Common Shares) does not make an election or makes an incomplete
or invalid election, such holder shall be deemed to have elected
to receive such number of Exchangeable Shares as is equal to the
Exchange Ratio for each Trimark Common Share held by such holder;
(c) the consideration which each holder of Trimark Common Shares and
each Holdco Shareholder has elected (or been deemed to have
elected) to receive in exchange for such Person's Trimark Common
Shares or Holdco Shares, as the case may be, shall be subject to
adjustment and pro-ration on the following bases:
(i) if the Aggregate Principal Amount of Debentures (A) is less
than or equal to $100,000,000, then no Debentures will be
issuable under the Arrangement and each holder of Trimark
Common Shares and each Holdco Shareholder who has elected to
receive all or part of the consideration for such Person's
Trimark Common Shares or Holdco Shares, as the case may be,
in the form of Debentures shall be entitled to receive that
number of Exchangeable Shares that such Person would have
been entitled to receive if such Person had elected to
receive (x)
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no Debentures, (y) the cash, if any, such Person will be
entitled to receive pursuant to section 2.2(b) after giving
effect to the pro-ration provisions of section 2.2(c)(ii),
and (z) the number of AMVESCAP Ordinary Shares, if any, such
Person will be entitled to receive pursuant to section
2.2(b), after giving effect to the pro-ration provisions of
section 2.2(c)(iii), or (B) exceeds the Maximum Debenture
Consideration, then the principal amount of Debentures
issuable under the Arrangement to each holder of Trimark
Common Shares and each Holdco Shareholder who had elected to
receive all or part of the consideration for such Person's
Trimark Common Shares or Holdco Shares, as the case may be,
in the form of Debentures shall be prorated (based on the
fraction equal to the Maximum Debenture Consideration
divided by the Aggregate Principal Amount of Debentures)
among all such Persons so that the aggregate principal
amount of Debentures issuable to all holders of Trimark
Common Shares and to all Holdco Shareholders under the
Arrangement shall be equal to the Maximum Debenture
Consideration and, subject to section 4.6, each such Person
(A) shall be entitled to receive Debentures equal to the
principal amount of Debentures issuable to such Person after
giving effect to the pro-ration provisions of this section
2.2(c)(i) and (B) subject to the pro-ration provisions of
section 2.2(c)(iii), shall be entitled to receive that
number of Exchangeable Shares that such Person would have
been entitled to receive if such Person had elected to
receive (x) such aggregate principal amount of Debentures,
(y) the cash, if any, such Person will be entitled to
receive pursuant to section 2.2(b) after giving effect to
the pro-ration provisions of section 2.2(c)(ii), and (z) the
number of AMVESCAP Ordinary Shares, if any, such Person will
be entitled to receive pursuant to section 2.2(b) after
giving effect to the pro-ration provisions of section
2.2(c)(iii);
(ii) if the Aggregate Amount of Cash exceeds the Maximum Cash
Consideration, then the amount of cash payable under the
Arrangement to each holder of Trimark Common Shares and to
each Holdco Shareholder who has elected to receive all or
part of the consideration for such Person's Trimark Common
Shares or Holdco Shares, as the case may be, in the form of
cash shall be prorated (based on the fraction equal to the
Maximum Cash Consideration divided by the Aggregate Amount
of Cash) among all such Persons so that the aggregate amount
of cash
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payable to all holders of Trimark Common Shares and to all
Holdco Shareholders under the Arrangement shall be equal to
the Maximum Cash Consideration and each such Person (A)
shall be entitled to receive cash equal to the amount of
cash payable to such Person after giving effect to the
pro-ration provisions of this section 2.2(c) and, subject
to section 4.6, (B) if such Person has made a further
election to receive Exchangeable Shares in such event or
has made no further election, such Person shall be entitled
to receive that number of Exchangeable Shares that such
Person would have been entitled to receive if such Person
had elected to receive (x) such amount of cash, (y) the
aggregate principal amount of Debentures, if any, such
Person will be entitled to receive pursuant to section
2.2(b) after giving effect to the pro-ration provisions of
section 2.2(c)(i), and (z) the number of AMVESCAP Ordinary
Shares, if any, such Person had elected to receive pursuant
to section 2.2(b), or (C) if such Person has made a further
election to receive Debentures in such event, subject to
the pro-ration provisions of section 2.2(c)(i), such Person
shall be entitled to receive Debentures in an aggregate
principal amount equal to the amount of cash such Person
had elected to receive less the amount of cash such Person
will receive after giving effect to the pro-ration
provisions of this section 2.2(c)(ii);
(iii) if the Aggregate Number of Shares exceeds the Maximum
Number of Shares, then (A) the number of Exchangeable
Shares issuable under the Arrangement to each holder of
Trimark Common Shares and to each Holdco Shareholder who
has elected (or is deemed to have elected or pursuant to
the proration provisions of section 2.2(c)(i) is entitled)
to receive all or part of the consideration for such
Person's Trimark Common Shares or Holdco Shares, as the
case may be, in the form of Exchangeable Shares shall be
prorated (based on the fraction equal to the Maximum Number
of Exchangeable Shares divided by the Aggregate Number of
Shares) among all such Persons so that the number of
Exchangeable Shares issuable to all holders of Trimark
Common Shares and to all Holdco Shareholders under the
Arrangement shall be equal to the Maximum Number of
Exchangeable Shares and, subject to section 4.6, each such
Person (w) shall be entitled to receive that number of
Exchangeable Shares equal to the number of Exchangeable
Shares issuable to such Person after giving effect to the
pro-ration provisions of this section 2.2(c), and (x) shall
be entitled
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to receive an additional amount of cash equal to (1) the
difference between the number of Exchangeable Shares such
Person elected to receive pursuant to section 2.2(b) and the
number of Exchangeable Shares such Person will be entitled
to receive after giving effect to the pro-ration provisions
of this section 2.2(c)(iii), divided by (2) the Exchange
Ratio, and multiplied by (3) Cdn. $27.00; and (B) the number
of AMVESCAP Ordinary Shares issuable under the Arrangement
to each holder of Trimark Common Shares and to each Holdco
Shareholder who has elected to receive all or part of the
consideration for such Person's Trimark Common Shares or
Holdco Shares, as the case may be, in the form of AMVESCAP
Ordinary Shares shall be prorated (based on the fraction
equal to the Maximum Number of AMVESCAP Ordinary Shares
divided by the Aggregate Number of Shares) among all such
Persons so that the number of AMVESCAP Ordinary Shares
issuable to all holders of Trimark Common Shares and to all
Holdco Shareholders under the Arrangement shall be equal to
the Maximum Number of AMVESCAP Ordinary Shares and, subject
to section 4.6, each such Person (y) shall be entitled to
receive AMVESCAP Ordinary Shares equal to the number of
AMVESCAP Ordinary Shares issuable to such Person after
giving effect to the pro-ration provisions of this section
2.2(c), and (z) shall be entitled to receive an additional
amount of cash equal to (1) the difference between the
number of AMVESCAP Ordinary Shares such Person elected to
receive pursuant to section 2.2(b) and the number of
AMVESCAP Ordinary Shares such Person will be entitled to
receive after giving affect to the pro-ration provisions of
this section 2.2(c)(iii), divided by (2) the Exchange Ratio,
and multiplied by (3) Cdn. $27.00.
(d) each Trimark Option that has not been duly exercised prior to the
Effective Time shall be exchanged for an option (a "REPLACEMENT
OPTION") to purchase the number of AMVESCAP Ordinary Shares equal
to the product of the Exchange Ratio multiplied by the number of
Trimark Common Shares that may be purchased as if such Trimark
Option were exercisable and exercised immediately prior to the
Effective Time. Such Replacement Option shall provide for an
exercise price per AMVESCAP Ordinary Share equal to the exercise
price per Trimark Common Share of such Trimark Option immediately
prior to the Effective Time divided by the Exchange Ratio,
provided that in no circumstance shall the exercise price per
AMVESCAP Ordinary Share be less than 25 xxxxx and if the
calculation results in an exercise price
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less than 25 xxxxx, the exercise price shall be deemed to be 25
xxxxx per AMVESCAP Ordinary Share. If the foregoing calculation
results in a Replacement Option being exercisable for a fraction
of an AMVESCAP Ordinary Share, then the number of AMVESCAP
Ordinary Shares subject to such Replacement Option shall be
rounded down to the next whole number of AMVESCAP Ordinary Shares
and the total exercise price for the Replacement Option shall be
reduced by the exercise price of the fractional AMVESCAP Ordinary
Share, provided that in no circumstance shall the exercise price
per AMVESCAP Ordinary Share be less than 25 xxxxx and if the
calculation results in an exercise price less than 25 xxxxx, the
exercise price shall be deemed to be 25 xxxxx per AMVESCAP
Ordinary Share. The term to expiry, conditions to and manner of
exercising, vesting schedule and all other terms and conditions
of such Replacement Option will be the same as the terms and
conditions of such Trimark Option, and any document or agreement
previously evidencing such Trimark Option shall thereafter
evidence and be deemed to evidence such Replacement Options.
Notwithstanding the foregoing, the holder of a Trimark Option
may, at his or her sole option, notify AMVESCAP in writing on or
before the Effective Time that he or she wishes to increase the
exercise price per AMVESCAP Ordinary Share for his or her
Replacement Option in the event that the value of such
Replacement Option immediately after the Effective Time (measured
as the difference between the closing price of the AMVESCAP
Ordinary Shares on the LSE on the Effective Date and the exercise
price for such shares pursuant to such Replacement Option)
exceeds the value of the Trimark Option immediately before the
Effective Time (measured as the difference between the closing
price of the Trimark Common Shares underlying such Trimark Option
on The Toronto Stock Exchange Inc. on the trading day immediately
preceding the Effective Date and the exercise price for such
shares pursuant to such Trimark Option) to the amount necessary
to make the value of such Replacement Option immediately after
the Effective Time equal to the value of such Trimark Option
immediately before the Effective Time and in the event such
notice is given, the exercise price per AMVESCAP Ordinary Share
under such Replacement Option shall be deemed to be equal to such
amount; provided that in no circumstances shall the exercise
price per AMVESCAP Ordinary Share be less than 25 xxxxx;
(e) AMVESCAP shall issue to and deposit with the Trustee the Special
Voting Share, in consideration of the payment to AMVESCAP by a
non-U.K. resident of one (1) pound sterling, to be thereafter
held of
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record by the Trustee as trustee for and on behalf of, and for
the use and benefit of, the holders of the Exchangeable Shares in
accordance with the Voting and Exchange Trust Agreement; and
(f) if there is one or more Holding Companies, Trimark and all of the
Holding Companies shall amalgamate and continue as one
corporation under the OBCA, Amalco, with the effect described
below unless and until otherwise determined in the manner
required by law or by Amalco, its directors or shareholders, and
the following provisions shall apply:
(i) NAME. The name of Amalco shall be Trimark Financial
Corporation/Societe Financiere Trimark;
(ii) REGISTERED OFFICE. The registered office of Amalco shall be
located in the City of Toronto in the Province of Ontario.
The address of the registered office of Amalco shall be
0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0;
(iii) BUSINESS AND POWERS. There shall be no restrictions on the
business that Amalco may carry on or on the powers it may
exercise;
(iv) AUTHORIZED SHARE CAPITAL. Amalco shall be authorized to
issue an unlimited number of common shares;
(v) SHARE CONVERSION. Each share in the capital of Trimark and
each share in the capital of each Holding Company shall be
converted into one common share in the capital of Amalco;
(vi) SHARE RESTRICTIONS.
(A) TRANSFER. The transfer of shares in the capital of
Amalco shall be restricted in that no share shall be
transferred without either (i) the consent of the
directors of Amalco expressed by resolution passed by
the board of directors or by an instrument or
instruments in writing signed by all of such directors,
or (ii) the consent of the holders of shares in the
capital of Amalco to which are attached more than 50%
of the voting rights attaching to all shares for the
time being outstanding entitled to vote at such time
expressed by a resolution passed by such shareholders
at a meeting duly called and constituted for that
purpose or by an instrument or instruments in writing
signed by all of such shareholders;
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(B) NUMBER OF SHAREHOLDERS. The number of shareholders of
Amalco, exclusive of Persons who are in its employment
and exclusive of Persons who, having been formerly in
the employment of Amalco, were, while in that
employment, and have continued after termination of
that employment to be, shareholders of such Amalco, is
limited to not more than 50, two or more Persons who
are the joint registered owners of one or more shares
in the capital of Amalco being counted as one
shareholder; and
(C) PUBLIC DISTRIBUTIONS. Any invitation to the public to
subscribe for any securities of Amalco is prohibited;
(vii) NUMBER OF DIRECTORS. The number of directors of Amalco
shall be not less than one (1) and not more than ten (10)
as the shareholders of Amalco may from time to time
determine by special resolution or, if empowered to do so
by special resolution, as the directors of Amalco may from
time to time determine; and
(viii) INITIAL DIRECTORS. The initial directors of Amalco shall
be Xxxxxx Xxxx, Xxxxxx Krembil, Xxxxxx XxXxxxxxxx and
Xxxxxx Xxxxxx;
(ix) BY-LAWS. The by-laws of Amalco shall be the same as the
by-laws of AIM Funds Management Inc.; and
(x) STATED CAPITAL. For the purposes of the OBCA, there shall
be added to the stated capital of Amalco, the aggregate
amount of the stated capital of the shares of Trimark and
the shares of each Holding Company other than shares of a
Holding Company held by another Holding Company.
SECTION 2.3 ELECTIONS
(a) Each Person who, at or prior to the Election Deadline, is a
holder of record of Trimark Common Shares or Holdco Shares will
be entitled, with respect to their shares, to make an election to
receive (i) cash, (ii) Debentures, (iii) Exchangeable Shares,
(iv) AMVESCAP Ordinary Shares, or (v) a Consideration Package (in
which case a holder of Trimark Common Shares or a Holdco
Shareholder, as the case may be, must designate the percentage of
the Consideration Package to be comprised of each of the
foregoing components), in exchange for such Person's Trimark
Common Shares or Holdco Shares, as the case may be, all on the
basis set forth herein (including the provisions of section
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2.2) and in the Letter of Transmittal and Election Form or the
Holdco Letter of Transmittal and Election Form, as the case may
be.
(b) Holders of Trimark Common Shares and Holdco Shareholders, other
than any such Person who is exempt by the provisions of the Tax
Act from tax under the Tax Act, who are entitled to receive
Exchangeable Shares under the Arrangement shall be entitled to
make an income tax election pursuant to subsection 85(1) of the
Tax Act or, if the Person is a partnership, subsection 85(2) of
the Tax Act (and in each case, where applicable, the analogous
provisions of provincial income tax law) and, where applicable,
an election under section 57.9 of the Corporations Tax Act
(Ontario) (or such similar elections as may be applicable under
the analogous provisions of any other provincial corporation tax
law) with respect to the transfer of their Trimark Common Shares
or their Holdco Shares, as the case may be, to Exchangeco by
providing two signed copies of the necessary prescribed election
forms to the Agent within 90 days following the Effective Date,
duly completed with the details of the number of Trimark Common
Shares or Holdco Shares transferred and the applicable agreed
amounts for the purposes of such elections. Thereafter, subject
to the election forms being correct and complete and complying
with the provisions of the Tax Act (or applicable provincial
income or corporate tax law), the forms will be signed by
Exchangeco and returned to such Persons within 30 days after the
receipt thereof by the Agent for filing with the Canada Customs
and Revenue Agency (or the applicable provincial taxing
authority). Exchangeco will not be responsible for the proper
completion of any election form and, except for Exchangeco's
obligation to return duly completed election forms which are
received by the Agent within 90 days of the Effective Date,
within 30 days after the receipt thereof by the Agent, Exchangeco
will not be responsible for any taxes, interest or penalties
resulting from the failure by a holder of Trimark Common Shares
or by a Holdco Shareholder to properly complete or file the
election forms in the form and manner and within the time
prescribed by the Tax Act (or any applicable provincial
legislation). In its sole discretion, Exchangeco may choose to
sign and return an election form received more than 90 days
following the Effective Date, but Exchangeco will have no
obligation to do so.
SECTION 2.4 ADJUSTMENTS TO EXCHANGE RATIO
The Exchange Ratio shall be adjusted to reflect fully the effect of any
stock split, reverse split, stock dividend (including any dividend or
distribution of securities convertible into AMVESCAP Ordinary Shares or Trimark
Common
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Shares, other than stock dividends paid in lieu of ordinary course dividends),
reorganization, recapitalization or other like change with respect to AMVESCAP
Ordinary Shares or Trimark Common Shares occurring after the date of the Merger
Agreement and prior to the Effective Time.
SECTION 2.5 REGISTRATION REQUIREMENTS
Notwithstanding sections 2.2, 4.3 and 4.4 but subject to the further
provisions of this section 2.5, no Exchangeable Shares, Debentures or AMVESCAP
Ordinary Shares shall be issued or transferred to any holder of Trimark Common
Shares or any Holdco Shareholder if, as a result thereof, there would be a
requirement to file a registration statement with the Securities and Exchange
Commission in the United States or ongoing disclosure or other requirements in
the United States and, in such event, in lieu of the Exchangeable Shares,
Debentures or AMVESCAP Ordinary Shares such Person would otherwise be entitled
to receive, such Person shall be entitled to receive a cash payment equal to the
net proceeds (after expenses) received by the Agent upon the sale of such
Exchangeable Shares, Debentures or AMVESCAP Ordinary Shares and the Agent shall
sell such Exchangeable Shares, Debentures or AMVESCAP Ordinary Shares promptly
after the Effective Date and after receipt of the certificates representing such
holder's Trimark Common Shares or Holdco Shares, as the case may be, and a duly
completed Letter of Transmittal and Election Form or a Holdco Letter of
Transmittal and Election Form, as applicable, and such other documents and
instruments as the Agent may reasonably require.
ARTICLE 3
RIGHTS OF DISSENT
SECTION 3.1 RIGHTS OF DISSENT
Holders of Trimark Common Shares may exercise rights of dissent with
respect to such shares pursuant to and in the manner set forth in section 185 of
the OBCA and this section 3.1 (the "DISSENT RIGHTS") in connection with the
Arrangement; provided that, notwithstanding subsection 185(6) of the OBCA, the
written objection to the Arrangement Resolution referred to in subsection 185(6)
of the OBCA must be received by Trimark not later than 5:00 p.m. (Toronto time)
on the Business Day preceding the Trimark Meeting; and provided further, that
notwithstanding the provisions of subsection 185(14) of the OBCA, holders of
Trimark Common Shares who duly exercise such rights of dissent and who:
(a) are ultimately determined to be entitled to be paid fair value
for their Trimark Common Shares, shall be deemed to have
transferred such Trimark Common Shares as of the Effective Time,
without any further act or formality and free and clear of all
liens, claims and encumbrances to Exchangeco in consideration for
a payment of cash
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from Exchangeco equal to such fair value and such shares shall be
cancelled as of the Effective Time; or
(b) are ultimately determined not to be entitled, for any reason, to
be paid fair value for their Trimark Common Shares, shall be
deemed to have participated in the Arrangement, as of the
Effective Time, on the same basis as a non-dissenting holder of
Trimark Common Shares who did not make an election and shall be
entitled to receive Exchangeable Shares on the basis determined
in accordance with sections 2.2(b) and 2.2(c);
but in no case shall AMVESCAP, Callco, Exchangeco, the Agent or any other Person
be required to recognize any Dissenting Shareholder as a holder of Trimark
Common Shares after the Effective Time, and the name of each Dissenting
Shareholder shall be deleted from the registers of holders of Trimark Common
Shares at the Effective Time.
ARTICLE 4
CERTIFICATES AND FRACTIONAL SHARES
SECTION 4.1 PAYMENT OF CASH
At or promptly after the Effective Time, Exchangeco shall deposit with
the Agent, for the benefit of the holders of Trimark Common Shares and of the
Holdco Shareholders, cash in the amount of the Maximum Cash Consideration. Upon
surrender to the Agent for cancellation of a certificate which immediately prior
to the Effective Time represented Trimark Common Shares or Holdco Shares that
were transferred for cash under the Arrangement, together with a duly completed
Letter of Transmittal and Election Form or a Holdco Letter of Transmittal and
Election Form, as the case may be, and such other documents and instruments as
the Agent may reasonably require, the holder of such surrendered certificate
shall be entitled to receive, and after the Effective Time the Agent shall
deliver to such Person, the amount of cash such Person is entitled to receive
under the Arrangement (less any amounts withheld pursuant to section 4.9), and
any certificate so surrendered shall forthwith be cancelled. In the event of a
transfer of ownership of such Trimark Common Shares which was not registered in
the transfer records of Trimark, the amount of cash payable for such Trimark
Common Shares under the Arrangement may be delivered to the transferee if the
certificate representing such Trimark Common Shares is presented to the Agent,
accompanied by all documents required to evidence and effect such transfer.
Until surrendered as contemplated by this section 4.1, each certificate which
immediately prior to the Effective Time represented one or more outstanding
Trimark Common Shares that, under the Arrangement, were exchanged for cash
pursuant to section 2.2 shall be deemed at all times after the Effective Time to
represent only the right to receive upon such
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surrender the cash payment contemplated by this section 4.1, less any amounts
withheld pursuant to section 4.9.
SECTION 4.2 ISSUANCE OF CERTIFICATES REPRESENTING DEBENTURES
At or promptly after the Effective Time, Exchangeco shall deposit with
the Agent, for the benefit of the holders of Trimark Common Shares and of the
Holdco Shareholders, certificates representing Debentures with an aggregate
principal amount equal to the aggregate principal amount of Debentures issuable
under the Arrangement which shall not be less than Cdn. $100,000,000 and shall
not exceed the Maximum Debenture Consideration. Upon surrender (on or prior to
the Election Deadline) to the Agent for cancellation of a certificate which
immediately prior to the Effective Time represented Trimark Common Shares or
Holdco Shares that were transferred for Debentures under the Arrangement,
together with a duly completed Letter of Transmittal and Election Form or a
Holdco Letter of Transmittal and Election Form, as the case may be, and such
other documents and instruments as the Agent may reasonably require, the holder
of such surrendered certificate shall be entitled to receive, and after the
Effective Time the Agent shall deliver to such Person, certificates registered
in the name of such Person representing the principal amount of Debentures which
such Person is entitled to receive (together with any interest with respect
thereto pursuant to section 4.5 and any cash in lieu of Debentures with a
principal amount less than Cdn.$1,000 pursuant to section 4.6, less any amounts
withheld pursuant to section 4.9), and any certificate so surrendered shall
forthwith be cancelled. In the event of a transfer of ownership of such Trimark
Common Shares which was not registered in the transfer records of Trimark, the
certificates representing the principal amount of Debentures issuable in
exchange for such Trimark Common Shares may be registered in the name of and
issued to the transferee if the certificate representing such Trimark Common
Shares is presented to the Agent, accompanied by all documents required to
evidence and effect such transfer.
SECTION 4.3 ISSUANCE OF CERTIFICATES REPRESENTING EXCHANGEABLE SHARES
At or promptly after the Effective Time, Exchangeco shall deposit with
the Agent, for the benefit of the holders of Trimark Common Shares and of the
Holdco Shareholders, certificates representing that number of whole Exchangeable
Shares issuable under the Arrangement. Upon surrender to the Agent for
cancellation of a certificate which immediately prior to the Effective Time
represented Trimark Common Shares or Holdco Shares that were transferred for
Exchangeable Shares under the Arrangement, together with a duly completed Letter
of Transmittal and Election Form or a Holdco Letter of Transmittal and Election
Form, as the case may be, and such other documents and instruments as the Agent
may reasonably require, the holder of such surrendered certificate shall be
entitled to receive, and after the Effective Time the Agent shall deliver to
such Person, certificates registered in the name of such Person representing
that number of Exchangeable Shares which
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such Person is entitled to receive (together with any dividends or distributions
with respect thereto pursuant to section 4.5 and any cash in lieu of fractional
Exchangeable Shares pursuant to section 4.6, less any amounts withheld pursuant
to section 4.9), and any certificate so surrendered shall forthwith be
cancelled. In the event of a transfer of ownership of such Trimark Common Shares
which was not registered in the transfer records of Trimark, certificates
representing the number of Exchangeable Shares issuable in exchange for such
Trimark Common Shares may be registered in the name of and issued to the
transferee if the certificate representing such Trimark Common Shares is
presented to the Agent, accompanied by all documents required to evidence and
effect such transfer. Until surrendered as contemplated by this section 4.3,
each certificate which immediately prior to the Effective Time represented one
or more outstanding Trimark Common Shares that, under the Arrangement, were
exchanged for Exchangeable Shares pursuant to section 2.2 shall be deemed at all
times after the Effective Time to represent only the right to receive upon such
surrender (i) a certificate representing the Exchangeable Shares as contemplated
by this section 4.3, (ii) a cash payment in lieu of any fractional Exchangeable
Shares as contemplated by section 4.6 and (iii) any dividends or distributions
with a record date after the Effective Time theretofore paid or payable with
respect to the Exchangeable Shares as contemplated by section 4.5, in each case
less any amounts withheld pursuant to section 4.9.
SECTION 4.4 EXCHANGE OF CERTIFICATES FOR AMVESCAP ORDINARY SHARES
At or promptly after the Effective Time, Exchangeco shall deposit or
cause the deposit with the Agent, for the benefit of the holders of Trimark
Common Shares and of the Holdco Shareholders, certificates representing that
whole number of AMVESCAP Ordinary Shares issuable under the Arrangement. Upon
surrender (on or prior to the Election Deadline) to the Agent for cancellation
of a certificate which immediately prior to the Effective Time represented
outstanding Trimark Common Shares or Holdco Shares that were transferred for
AMVESCAP Ordinary Shares under the Arrangement, together with a duly completed
Letter of Transmittal and Election Form or a Holdco Letter of Transmittal and
Election Form, as the case may be, and such other documents and instruments as
the Agent may reasonably require, the holder of such surrendered certificate
shall be entitled to receive, and after the Effective Time the Agent shall
deliver to such Person, a certificate representing that number of AMVESCAP
Ordinary Shares which such Person is entitled to receive (together with any
dividends or distributions with respect thereto pursuant to section 4.5 and any
cash in lieu of fractional AMVESCAP Ordinary Shares pursuant to section 4.6,
less any amounts withheld pursuant to section 4.9), and any certificate so
surrendered shall forthwith be cancelled. In the event of a transfer of
ownership of such Trimark Common Shares which was not registered in the transfer
records of Trimark, the certificates representing the number of AMVESCAP
Ordinary Shares issuable in exchange for such Trimark Common Shares may be
registered in the name of and issued to the transferee if the certificate
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representing such Trimark Common Shares is presented to the Agent on or prior to
the Election Deadline, accompanied by a duly completed Letter of Transmittal and
Election Form and all documents required to evidence and effect such transfer.
SECTION 4.5 DISTRIBUTIONS WITH RESPECT TO UNSURRENDERED CERTIFICATES
No interest, dividends or other distributions paid, declared or made
with respect to (i) Debentures, (ii) Exchangeable Shares, or (iii) AMVESCAP
Ordinary Shares, in each case with a record date after the Effective Time, shall
be paid to the holder of any unsurrendered certificate which immediately prior
to the Effective Time represented outstanding Trimark Common Shares or
outstanding Holdco Shares, and no cash payment in lieu of Debentures with a
principal amount less than Cdn.$1,000 or in lieu of fractional Exchangeable
Shares or AMVESCAP Ordinary Shares shall be paid to any such Person pursuant to
section 4.6, unless and until such Person shall have complied with the
provisions of sections 4.2, 4.3 or 4.4, as applicable. Subject to applicable
law, at the time such Person shall have complied with the provisions of such
sections (or, in the case of clause (z) below, at the appropriate payment date),
there shall be paid to such Person, without interest, (x) the amount of any cash
payable in lieu of Debentures with a principal amount less than Cdn.$1,000 or in
lieu of a fractional Exchangeable Share or AMVESCAP Ordinary Share to which such
Person is entitled pursuant to section 4.6, (y) the amount of interest,
dividends or other distributions with a record date after the Effective Time
theretofore paid with respect to the Debentures, the Exchangeable Share or the
AMVESCAP Ordinary Share, as the case may be, to which such Person is entitled
pursuant hereto and (z) on the appropriate payment date, the amount of interest,
dividends or other distributions with a record date after the Effective Time but
prior to the date of compliance by such Person with the provisions of sections
4.2, 4.3 or 4.4 and a payment date subsequent to the date of such compliance and
payable with respect to such Debentures, Exchangeable Shares or AMVESCAP
Ordinary Shares, as the case may be.
SECTION 4.6 NO FRACTIONAL DEBENTURES OR SHARES
No certificates representing Debentures with a principal amount less
than Cdn.$1,000 or fractional Exchangeable Shares or fractional AMVESCAP
Ordinary Shares shall be issued upon compliance with the provisions of sections
4.2, 4.3 or 4.4 and no interest payment and no dividend, stock split or other
change in the capital structure of Exchangeco or AMVESCAP shall relate to any
such fractional security and such fractional interests shall not entitle the
owner thereof to exercise any rights as a security holder of Exchangeco or
AMVESCAP. In lieu of any such fractional securities, each Person otherwise
entitled to Debentures with a principal amount less than Cdn.$1,000 or to a
fractional interest in an Exchangeable Share or AMVESCAP Ordinary Share will be
entitled to receive from Exchangeco (i) the principal amount of such Debentures
or (ii) a cash payment equal to such fractional interest multiplied by the
Current Market Price of an AMVESCAP Ordinary Share as of the Effective
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Date, as the case may be. On the date of the notice referred to in section 7(2)
of the Exchangeable Share Provisions, the aggregate number of Exchangeable
Shares and the aggregate number of AMVESCAP Ordinary Shares for which no
certificates were issued as a result of the foregoing provisions of this section
4.6 shall be deemed to have been surrendered by the Agent for no consideration
to Exchangeco or AMVESCAP, as the case may be.
SECTION 4.7 LOST CERTIFICATES
In the event any certificate which immediately prior to the Effective
Time represented one or more outstanding Trimark Common Shares that were
exchanged pursuant to section 2.2 shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the Person claiming such
certificate to be lost, stolen or destroyed, the Agent will issue in exchange
for such lost, stolen or destroyed certificate, any cash and/or certificates
representing Debentures, Exchangeable Shares or AMVESCAP Ordinary Shares (and
any interest, dividends or distributions with respect thereto) deliverable in
accordance with section 2.2 and such holder's Letter of Transmittal and Election
Form. When authorizing such payment in exchange for any lost, stolen or
destroyed certificate, the Person to whom cash and/or certificates representing
Debentures, Exchangeable Shares or AMVESCAP Ordinary Shares are to be issued
shall, as a condition precedent to the issuance thereof, give a bond
satisfactory to Trimark, Exchangeco, AMVESCAP and their respective transfer
agents in such sum as Trimark, Exchangeco or AMVESCAP may direct or otherwise
indemnify Trimark, Exchangeco and AMVESCAP in a manner satisfactory to Trimark,
Exchangeco and AMVESCAP against any claim that may be made against Trimark,
Exchangeco or AMVESCAP with respect to the certificate alleged to have been
lost, stolen or destroyed.
SECTION 4.8 EXTINCTION OF RIGHTS
Any certificate which immediately prior to the Effective Time
represented outstanding Trimark Common Shares that were exchanged pursuant to
section 2.2 that is not deposited with all other instruments required by
sections 4.1, 4.2, 4.3 or 4.4 on or prior to the date of the notice referred to
in section 7(2) of the Exchangeable Share Provisions shall cease to represent a
claim or interest of any kind or nature as a securityholder of Exchangeco or
AMVESCAP. On such date, the (i) cash and/or Exchangeable Shares and/or (ii) the
Debentures to which the former holder of the certificate referred to in the
preceding sentence was ultimately entitled shall be deemed to have been
surrendered for no consideration to Exchangeco. None of AMVESCAP, Trimark,
Exchangeco or the Agent shall be liable to any person in respect of any cash
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
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SECTION 4.9 WITHHOLDING RIGHTS
Trimark, Exchangeco, Callco, AMVESCAP and the Agent shall be entitled
to deduct and withhold from any interest, dividend or consideration otherwise
payable to any holder of Trimark Common Shares, Holdco Shares, Debentures,
AMVESCAP Ordinary Shares or Exchangeable Shares such amounts as Trimark,
Exchangeco, Callco, AMVESCAP or the Agent is required to deduct and withhold
with respect to such payment under the Tax Act, United Kingdom tax laws or any
provision of provincial, territorial, state, local or foreign tax law, in each
case, as amended. To the extent that amounts are so withheld, such withheld
amounts shall be treated for all purposes hereof as having been paid to the
holder of the securities in respect of which such deduction and withholding was
made, provided that such withheld amounts are actually remitted to the
appropriate taxing authority. To the extent that the amount so required to be
deducted or withheld from any payment to a holder exceeds the cash portion of
the consideration otherwise payable to such holder, Trimark, Exchangeco, Callco,
AMVESCAP and the Agent are hereby authorized to sell or otherwise dispose of
such portion of the consideration as is necessary to provide sufficient funds to
Trimark, Exchangeco, Callco, AMVESCAP or the Agent, as the case may be, to
enable it to comply with such deduction or withholding requirement (provided
that, if practicable, first Debentures, then AMVESCAP Ordinary Shares and
finally Exchangeable Shares will be sold or otherwise disposed of) and Trimark,
Exchangeco, Callco, AMVESCAP or the Agent shall notify the holder thereof and
remit any unapplied balance of the net proceeds of such sale.
SECTION 4.10 STAMP TAX
Notwithstanding any other provision herein, a holder of Debentures
and/or Exchangeable Shares or a Person to whom Debentures and/or Exchangeable
Shares are issued (in each case other than AMVESCAP, its Affiliates (except for
Affiliates who, at the date of the Merger Agreement, were Affiliates and holders
of Trimark Common Shares and except in respect of the conversion into or
exchange of such shares for AMVESCAP Ordinary Shares, Exchangeable Shares or
Debentures and any transfer of such securities), the Agent and the Transfer
Agent) shall be responsible for any and all Stamp Taxes payable by any Person in
connection with the transfer or issuance of such Person's securities or their
conversion into or exchange for Exchangeable Shares or AMVESCAP Ordinary Shares
(or any transaction or event completed in furtherance of such transfer,
issuance, conversion or exchange) and a transferee of AMVESCAP Ordinary Shares
or a Person to whom AMVESCAP Ordinary Shares are issued (in each case other than
AMVESCAP, its Affiliates (except for Affiliates who, at the date of the Merger
Agreement, were Affiliates and holders of Trimark Common Shares and except in
respect of the conversion into or exchange of such shares for AMVESCAP Ordinary
Shares, Exchangeable Shares or Debentures and any transfer of such securities),
the Agent and the Transfer Agent) shall be responsible for any and all Stamp
Taxes payable by
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any Person in connection with the transfer or issuance of such Person's shares
(or any transaction or event completed in furtherance of such transfer or
issuance); provided that, in no event shall any Person (other than AMVESCAP, its
Affiliates, the Agent and the Transfer Agent) be entitled to rely on the
provisions of this section 4.10 in any action, suit or proceeding relating to
Stamp Taxes brought against any holder of Debentures and/or Exchangeable Shares
or any Person to whom Debentures and/or Exchangeable Shares are issued. In no
event will AMVESCAP, its Affiliates, the Agent or the Transfer Agent be
responsible for any such Stamp Taxes and AMVESCAP, its Affiliates, the Agent
and/or the Transferee Agent shall make such regulations and arrangements as are
necessary to ensure that such holders, such transferees and such Persons pay all
such applicable Stamp Taxes.
ARTICLE 5
CERTAIN RIGHTS OF CALLCO TO ACQUIRE EXCHANGEABLE SHARES
SECTION 5.1 CALLCO LIQUIDATION CALL RIGHT
(1) Callco shall have the overriding right (the "LIQUIDATION CALL RIGHT"), in
the event of and notwithstanding the proposed liquidation, dissolution or
winding-up of Exchangeco or any other distribution of the assets of
Exchangeco among its shareholders for the purpose of winding up its
affairs, pursuant to Article 5 of the Exchangeable Share Provisions, to
purchase from all but not less than all of the holders of Exchangeable
Shares (other than any holder of Exchangeable Shares which is AMVESCAP or
an Affiliate of AMVESCAP) on the Liquidation Date all but not less than all
of the Exchangeable Shares held by each such holder on payment by Callco of
an amount per share (the "LIQUIDATION CALL PURCHASE PRICE") equal to the
Current Market Price of an AMVESCAP Ordinary Share on the last Business Day
prior to the Liquidation Date, which shall be satisfied in full by Callco
delivering or causing to be delivered to such holder one AMVESCAP Ordinary
Share, which on issue will be admitted to listing by the UKLA and traded on
the LSE, plus any Dividend Amount. In the event of the exercise of the
Liquidation Call Right by Callco, each holder shall be obligated to sell
all the Exchangeable Shares held by the holder to Callco on the Liquidation
Date on payment by Callco to the holder of the Liquidation Call Purchase
Price for each such share, and Exchangeco shall have no obligation to pay
any Liquidation Amount or Dividend Amount to the holders of such shares so
purchased by Callco.
(2) To exercise the Liquidation Call Right, Callco must notify Exchangeco's
transfer agent (the "TRANSFER AGENT"), as agent for the holders of
Exchangeable Shares, and Exchangeco of Callco's intention to exercise such
right at least 45 days before the Liquidation Date in the case of a
voluntary liquidation, dissolution or winding-up of Exchangeco or any other
voluntary
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distribution of the assets of Exchangeco among its shareholders for the
purpose of winding up its affairs, and at least five Business Days before
the Liquidation Date in the case of an involuntary liquidation, dissolution
or winding-up of Exchangeco or any other involuntary distribution of the
assets of Exchangeco among its shareholders for the purpose of winding up
its affairs. The Transfer Agent will notify the holders of Exchangeable
Shares as to whether or not Callco has exercised the Liquidation Call Right
forthwith after the expiry of the period during which the same may be
exercised by Callco. If Callco exercises the Liquidation Call Right, then
on the Liquidation Date Callco will purchase and the holders will sell all
of the Exchangeable Shares then outstanding for a price per share equal to
the Liquidation Call Purchase Price.
(3) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Liquidation Call Right, Callco shall deposit or cause to be
deposited with the Transfer Agent, on or before the Liquidation Date,
certificates representing the aggregate number of AMVESCAP Ordinary Shares
which Callco shall deliver or cause to be delivered pursuant to Section
5.1(1) and a cheque or cheques of Callco payable at par at any branch of
the bankers of Callco representing the aggregate Dividend Amount, if any,
in payment of the total Liquidation Call Purchase Price, in each case less
any amounts withheld pursuant to section 4.9. Provided that Callco has
complied with the immediately preceding sentence, on and after the
Liquidation Date the holders of the Exchangeable Shares shall cease to be
holders of the Exchangeable Shares and shall not be entitled to exercise
any of the rights of holders in respect thereof (including, without
limitation, any rights under the Voting and Exchange Trust Agreement),
other than the right to receive their proportionate part of the total
Liquidation Call Purchase Price, unless payment of the total Liquidation
Call Purchase Price for the Exchangeable Shares shall not be made upon
presentation and surrender of share certificates in accordance with the
following provisions of this section 5.1(3), in which case the rights of
the holders shall remain unaffected until the total Liquidation Call
Purchase Price has been paid in the manner herein provided. Upon surrender
to the Transfer Agent of a certificate or certificates representing
Exchangeable Shares, together with such other documents and instruments as
may be required to effect a transfer of Exchangeable Shares under the
Companies Act and the Memorandum and Articles of Association of Exchangeco
and such additional documents, instruments and payments (including, without
limitation, any applicable Stamp Taxes) as the Transfer Agent may
reasonably require, the holder of such surrendered certificate or
certificates shall be entitled to receive in exchange therefor, and the
Transfer Agent on behalf of Callco shall transfer to such holder, the
AMVESCAP Ordinary Shares to which such holder is entitled and as soon as
reasonably
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practicable thereafter the Transfer Agent shall deliver to such holder
certificates representing the AMVESCAP Ordinary Shares to which the holder
is entitled and a cheque or cheques of Callco payable at par at any branch
of the bankers of Callco representing the remaining portion, if any, of the
total Liquidation Call Purchase Price, and when received by the Transfer
Agent, all dividends and other distributions with respect to such AMVESCAP
Ordinary Shares with a record date after the Liquidation Date and before
the date of the transfer of such AMVESCAP Ordinary Shares to such holder,
less any amounts withheld pursuant to section 4.9. If Callco does not
exercise the Liquidation Call Right in the manner described above, on the
Liquidation Date the holders of the Exchangeable Shares will be entitled to
receive in exchange therefor the Liquidation Amount otherwise payable by
Exchangeco in connection with the liquidation, dissolution or winding-up of
Exchangeco or any distribution of the assets of Exchangeco among its
shareholders for the purpose of winding up its affairs pursuant to Article
5 of the Exchangeable Share Provisions.
SECTION 5.2 CALLCO REDEMPTION CALL RIGHT
In addition to Callco's rights contained in the Exchangeable Share
Provisions, including, without limitation, the Retraction Call Right (as defined
in the Exchangeable Share Provisions), Callco shall have the following rights in
respect of the Exchangeable Shares:
(a) Callco shall have the overriding right (the "REDEMPTION CALL RIGHT"),
notwithstanding the proposed redemption of the Exchangeable Shares by
Exchangeco pursuant to Article 7 of the Exchangeable Share Provisions,
to purchase from all but not less than all of the holders of
Exchangeable Shares (other than any holder of Exchangeable Shares
which is AMVESCAP or an Affiliate of AMVESCAP) on the Redemption Date
all but not less than all of the Exchangeable Shares held by each such
holder on payment by Callco to each holder of an amount per
Exchangeable Share (the "REDEMPTION CALL PURCHASE PRICE") equal to the
Current Market Price of an AMVESCAP Ordinary Share on the last
Business Day prior to the Redemption Date, which shall be satisfied in
full by Callco delivering or causing to be delivered to such holder
one AMVESCAP Ordinary Share, which on issue will be admitted to
listing by the UKLA and traded on the LSE, plus any Dividend Amount.
In the event of the exercise of the Redemption Call Right by Callco,
each holder shall be obligated to sell all the Exchangeable Shares
held by the holder to Callco on the Redemption Date on payment by
Callco to the holder of the Redemption Call Purchase Price for each
such share, and Exchangeco shall have no
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obligation to redeem, or to pay any Dividend Amount in respect of,
such shares so purchased by Callco.
(b) To exercise the Redemption Call Right, Callco must notify the Transfer
Agent, as agent for the holders of Exchangeable Shares, and Exchangeco
of Callco's intention to exercise such right at least 60 days before
the Redemption Date, except in the case of a redemption occurring as a
result of an AMVESCAP Control Transaction or an Exchangeable Share
Voting Event, in which case Callco shall so notify the Transfer Agent
and Exchangeco on or before the Redemption Date. The Transfer Agent
will notify the holders of the Exchangeable Shares as to whether or
not Callco has exercised the Redemption Call Right forthwith after the
expiry of the period during which the same may be exercised by Callco.
If Callco exercises the Redemption Call Right, on the Redemption Date
Callco will purchase and the holders will sell all of the Exchangeable
Shares then outstanding for a price per share equal to the Redemption
Call Purchase Price.
(c) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Redemption Call Right, Callco shall deposit or cause
to be deposited with the Transfer Agent, on or before the Redemption
Date, certificates representing the aggregate number of AMVESCAP
Ordinary Shares which Callco shall deliver or cause to be delivered
pursuant to Section 5.2(1) and a cheque or cheques of Callco payable
at par at any branch of the bankers of Callco representing the
aggregate Dividend Amount, if any, in payment of the total Redemption
Call Purchase Price, in each case less any amounts withheld pursuant
to section 4.9. Provided that Callco has complied with the immediately
preceding sentence, on and after the Redemption Date the holders of
the Exchangeable Shares shall cease to be holders of the Exchangeable
Shares and shall not be entitled to exercise any of the rights of
holders in respect thereof (including, without limitation, any rights
under the Voting and Exchange Trust Agreement), other than the right
to receive their proportionate part of the total Redemption Call
Purchase Price, unless payment of the total Redemption Call Purchase
Price for the Exchangeable Shares shall not be made upon presentation
and surrender of share certificates in accordance with the following
provisions of this section 5.2(c), in which case the rights of the
holders shall remain unaffected until the total Redemption Call
Purchase Price has been paid in the manner herein provided. Upon
surrender to the Transfer Agent of a certificate or certificates
representing Exchangeable Shares, together with such other documents
and instruments as may be required to effect a
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transfer of Exchangeable Shares under the Companies Act and the
Memorandum and Articles of Association of Exchangeco and such
additional documents, instruments and payments (including, without
limitation, any applicable Stamp Taxes) as the Transfer Agent may
reasonably require, the holder of such surrendered certificate or
certificates shall be entitled to receive in exchange therefor, and
the Transfer Agent on behalf of Callco shall transfer to such holder,
the AMVESCAP Ordinary Shares to which such holder is entitled and as
soon as reasonably practicable thereafter the Transfer Agent shall
deliver to such holder certificates representing the AMVESCAP Ordinary
Shares to which the holder is entitled and a cheque or cheques of
Callco payable at par at any branch of the bankers of Callco
representing the remaining portion, if any, of the total Redemption
Call Purchase Price and when received by the Transfer Agent, all
dividends and other distributions with respect to such AMVESCAP
Ordinary Shares with a record date after the Redemption Date and
before the date of the transfer of such AMVESCAP Ordinary Shares to
such holder, less any amounts withheld pursuant to section 4.9. If
Callco does not exercise the Redemption Call Right in the manner
described above, on the Redemption Date the holders of the
Exchangeable Shares will be entitled to receive in exchange therefor
the redemption price otherwise payable by Exchangeco in connection
with the redemption of the Exchangeable Shares pursuant to Article 7
of the Exchangeable Share Provisions.
ARTICLE 6
AMENDMENTS
SECTION 6.1 AMENDMENTS TO PLAN OF ARRANGEMENT
(1) Trimark reserves the right to amend, modify and/or supplement this Plan of
Arrangement at any time and from time to time prior to the Effective Time,
provided that each such amendment, modification and/or supplement must be
(i) set out in writing, (ii) approved by AMVESCAP, (iii) filed with the
Court and, if made following the Trimark Meeting, approved by the Court,
and (iv) communicated to holders of Trimark Common Shares and Trimark
Options if and as required by the Court.
(2) Any amendment, modification or supplement to this Plan of Arrangement may
be proposed by Trimark at any time prior to the Trimark Meeting (provided
that AMVESCAP shall have consented thereto) with or without any other prior
notice or communication, and if so proposed and accepted by the Persons
voting at the Trimark Meeting (other than as may be required
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under the Interim Order), shall become part of this Plan of Arrangement for
all purposes.
(3) Any amendment, modification or supplement to this Plan of Arrangement that
is approved or directed by the Court following the Trimark Meeting shall be
effective only (i) if it is consented to by each of Trimark, Exchangeco and
AMVESCAP and (ii) if required by the Court, it is consented to by holders
of the Trimark Common Shares and Trimark Options voting in the manner
directed by the Court.
(4) Any amendment, modification or supplement to this Plan of Arrangement may
be made following the Effective Date unilaterally by AMVESCAP, provided
that it concerns a matter which, in the reasonable opinion of AMVESCAP, is
of an administrative nature required to better give effect to the
implementation of this Plan of Arrangement and is not adverse or
prejudicial to the financial or economic interests of any holder of
Exchangeable Shares or Debentures or any Person who, upon compliance with
the terms and conditions set out herein, is entitled to become a holder of
Exchangeable Shares or Debentures.
ARTICLE 7
FURTHER ASSURANCES
SECTION 7.1 FURTHER ASSURANCES
Each of the parties to the Merger Agreement 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 by any of them in order further to document or evidence any of the
transactions or events set out herein.
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APPENDIX 1
TO THE PLAN OF ARRANGEMENT
PROVISIONS ATTACHING TO THE
EXCHANGEABLE SHARES
The Exchangeable Shares shall have the following rights, privileges,
restrictions and conditions:
SECTION 1 INTERPRETATION
(1) For the purposes of these share provisions:
"AFFILIATE" has the meaning ascribed thereto in the Securities Act.
"AGENT" means any chartered bank or trust company in Canada selected by
the Corporation for the purposes of holding some or all of the
Liquidation Amount or Redemption Price in accordance with section 5 or
7, respectively.
"AMVESCAP" means AMVESCAP PLC, a corporation existing under the laws of
England.
"AMVESCAP ORDINARY SHARES" mean the ordinary shares in the capital of
AMVESCAP and any other securities into which such shares may be
changed.
"AMVESCAP CONTROL TRANSACTION" means any merger, amalgamation,
arrangement, take-over bid or tender offer, material sale of shares or
rights or interests therein or thereto or similar transactions
involving AMVESCAP, or any proposal to do so.
"AMVESCAP DIVIDEND DECLARATION DATE" means the date on which (i) in the
case of an interim dividend, the board of directors of AMVESCAP and
(ii) in the case of a final dividend, AMVESCAP in a general meeting,
declares any dividend on the AMVESCAP Ordinary Shares.
"ARRANGEMENT" means an arrangement under section 182 of the OBCA on the
terms and subject to the conditions set out in the Plan of Arrangement,
to which plan these share provisions are attached as Appendix 1 and
which Plan of Arrangement (other than Appendix 1 thereto) is attached
to these share provisions as Exhibit A.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation.
"BUSINESS DAY" means any day on which commercial banks are open for
business in Toronto, Ontario and London, England, other than a
Saturday, a
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Sunday or a day observed as a holiday in Toronto, Ontario or London,
England under applicable laws.
"CALLCO" means AVZ Callco Inc., a company existing under the laws of
Nova Scotia.
"CALLCO CALL NOTICE" has the meaning ascribed thereto in section 6(3)
of these share provisions.
"CANADIAN DOLLAR EQUIVALENT" means in respect of an amount expressed in
a currency other than Canadian dollars (the "FOREIGN CURRENCY AMOUNT")
at any date the product obtained by multiplying:
(a) the Foreign Currency Amount; by
(b) the noon spot exchange rate on such date for such foreign
currency expressed in Canadian dollars as reported by the Bank
of Canada or, in the event such spot exchange rate is not
available, such spot exchange rate on such date for such
foreign currency expressed in Canadian dollars as may be
deemed by the Board of Directors to be appropriate for such
purpose.
"COMMON SHARES" means the common shares in the capital of the
Corporation.
"COMPANIES ACT" means the Companies Act (Nova Scotia), as amended.
"CORPORATION" means AMVESCAP Inc., a corporation incorporated under the
laws of Nova Scotia.
"CURRENT MARKET PRICE" means, in respect of an AMVESCAP Ordinary Share
on any date, the quotient obtained by dividing (a) the aggregate of the
Daily Value of Trades for each day during the period of 20 consecutive
trading days ending not more than three trading days before such date;
by (b) the aggregate volume of AMVESCAP Ordinary Shares used to
calculate such Daily Value of Trades.
"DAILY VALUE OF TRADES" means, in respect of the AMVESCAP Ordinary
Shares on any trading day, the Canadian Dollar Equivalent of the
product of (a) the volume weighted average price of AMVESCAP Ordinary
Shares on the LSE (or, if the AMVESCAP Ordinary Shares are not listed
on the LSE, on such other stock exchange or automated quotation system
on which the AMVESCAP Ordinary Shares are listed or quoted, as the case
may be, as may be selected by the board of directors of AMVESCAP for
such purpose) on such date, as determined by Bloomberg L.P. or another
reputable, third party
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information source selected by the board of directors of AMVESCAP; and
(b) the aggregate volume of AMVESCAP Ordinary Shares traded on such day
on the LSE or such other stock exchange or automated quotation system
and used to calculate such volume weighted average price; provided that
any such selections by the board of directors of AMVESCAP shall be
conclusive and binding.
"DIRECTOR" means the Director appointed pursuant to section 278 of the
OBCA.
"DIVIDEND AMOUNT" means an amount equal to, and in full satisfaction
of, all declared and unpaid dividends on an Exchangeable Share held by
a holder on any dividend record date which occurred prior to the date
of purchase of such share by Callco from such holder.
"EFFECTIVE DATE" means the date shown on the certificate of arrangement
to be issued by the Director under the OBCA giving effect to the
Arrangement.
"EXCHANGEABLE SHARES" mean the non-voting exchangeable shares in the
capital of the Corporation, having the rights, privileges, restrictions
and conditions set forth herein.
"EXCHANGEABLE SHARE VOTING EVENT" means any matter in respect of which
holders of Exchangeable Shares are entitled to vote as shareholders of
the Corporation in order to approve or disapprove, as applicable, any
change to, or in the rights of the holders of, the Exchangeable Shares,
where the approval or disapproval, as applicable, of such change would
be required to maintain the economic equivalence of the Exchangeable
Shares and the AMVESCAP Ordinary Shares.
"GOVERNMENTAL ENTITY" means any (a) multinational, federal, provincial,
state, regional, municipal, local or other government, governmental or
public department, central bank, court, tribunal, arbitral body,
commission, board, bureau or agency, domestic or foreign, (b) any
subdivision, agent, commission, board, or authority of any of the
foregoing, or (c) any quasi- governmental or private body exercising
any regulatory, expropriation or taxing authority under or for the
account of any of the foregoing.
"HOLDER" means, when used with reference to the Exchangeable Shares, a
holder of Exchangeable Shares shown from time to time in the register
maintained by or on behalf of the Corporation in respect of the
Exchangeable Shares.
"LIQUIDATION AMOUNT" has the meaning ascribed thereto in section 5(1)
of these share provisions.
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"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in the Plan
of Arrangement.
"LIQUIDATION DATE" has the meaning ascribed thereto in section 5(1) of
these share provisions.
"LSE" means the London Stock Exchange plc or its successors.
"MERGER AGREEMENT" means the amended and restated merger agreement made
as of May 9, 2000 between AMVESCAP and Trimark Financial Corporation,
as further amended, supplemented and/or restated in accordance with its
terms, providing for, among other things, the Arrangement.
"OBCA" means the Business Corporations Act (Ontario), as amended.
"PERSON" includes any individual, firm, partnership, limited
partnership, joint venture, venture capital fund, limited liability
company, unlimited liability company, association, trust, trustee,
executor, administrator, legal personal representative, estate, group,
body corporate, corporation, unincorporated association or
organization, Governmental Entity, syndicate or other entity, whether
or not having legal status.
"PLAN OF ARRANGEMENT" means the plan of arrangement substantially in
the form and content of Schedule B annexed to the Merger Agreement and
any amendments or variations thereto made in accordance with section
6.1 of the Merger Agreement or Article 6 of the Plan of Arrangement or
made at the direction of the Court.
"PURCHASE PRICE" has the meaning ascribed thereto in section 6(3) of
these share provisions.
"REDEMPTION CALL PURCHASE PRICE" has the meaning ascribed thereto in
the Plan of Arrangement.
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in the Plan of
Arrangement.
"REDEMPTION DATE" means the date, if any, established by the Board of
Directors for the redemption by the Corporation of all but not less
than all of the outstanding Exchangeable Shares pursuant to Section 7
of these share provisions, which date shall be no earlier than December
31, 2009, unless:
(a) there are fewer than 5,000,000 Exchangeable Shares outstanding
(other than Exchangeable Shares held by AMVESCAP and its
affiliates, and
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as such number of shares may be adjusted as deemed appropriate
by the Board of Directors to give effect to any subdivision or
consolidation of or stock dividend on the Exchangeable Shares,
any issue or distribution of rights to acquire Exchangeable
Shares or securities exchangeable for or convertible into
Exchangeable Shares, any issue or distribution of other
securities or rights or evidences of indebtedness or assets,
or any other capital reorganization or other transaction
affecting the Exchangeable Shares), in which case the Board of
Directors may accelerate such redemption date to such date
prior to December 31, 2009 as they may determine, upon at
least 60 days' prior written notice to the holders of the
Exchangeable Shares and the Trustee;
(b) an AMVESCAP Control Transaction occurs, in which case,
provided that the Board of Directors determines, in good faith
and in its sole discretion, that it is not reasonably
practicable to substantially replicate the terms and
conditions of the Exchangeable Shares in connection with such
AMVESCAP Control Transaction and that the redemption of all
but not less than all of the outstanding Exchangeable Shares
is necessary to enable the completion of such AMVESCAP Control
Transaction in accordance with its terms, the Board of
Directors may accelerate such redemption date to such date
prior to December 31, 2009 as they may determine, upon such
number of days' prior written notice to the holders of the
Exchangeable Shares and the Trustee as the Board of Directors
may determine to be reasonably practicable in such
circumstances; or
(c) an Exchangeable Share Voting Event is proposed and the holders
of the Exchangeable Shares fail to take the necessary action,
at a meeting or other vote of holders of Exchangeable Shares,
to approve or disapprove, as applicable, the Exchangeable
Share Voting Event, in which case the redemption date shall be
the Business Day following the day on which the holders of the
Exchangeable Shares failed to take such action,
provided, however, that the accidental failure or omission to give any
notice of redemption under clauses (a), (b) or (c) above to any of the
holders of Exchangeable Shares shall not affect the validity of any
such redemption.
"REDEMPTION PRICE" has the meaning ascribed thereto in section 7(1) of
these share provisions.
"RETRACTED SHARES" has the meaning ascribed thereto in section 6(1)(a)
of these share provisions.
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"RETRACTION CALL RIGHT" has the meaning ascribed thereto in section
6(1)(c) of these share provisions.
"RETRACTION DATE" has the meaning ascribed thereto in section 6(1)(b)
of these share provisions.
"RETRACTION PRICE" has the meaning ascribed thereto in section 6(1) of
these share provisions.
"RETRACTION REQUEST" has the meaning ascribed thereto in section 6(1)
of these share provisions.
"SECURITIES ACT" means the Securities Act (Ontario) and the rules,
regulations and policies made thereunder, as amended.
"STAMP TAXES" means all stamp, registration and transfer taxes and
duties or their equivalents in all jurisdictions where such taxes and
duties are payable as a result of any of the transactions contemplated
by these share provisions including, without limitation, United Kingdom
stamp duty and stamp duty reserve tax.
"SUPPORT AGREEMENT" means the agreement made between AMVESCAP, Callco
and the Corporation substantially in the form and content of Schedule D
annexed to the Merger Agreement, as amended pursuant to the terms of
the Support Agreement.
"TRANSFER AGENT" means CIBC Mellon Trust Company or such other Person
as may from time to time be appointed by the Corporation as the
registrar and transfer agent for the Exchangeable Shares.
"TRUSTEE" means the trustee chosen by AMVESCAP to act as trustee under
the Voting and Exchange Trust Agreement, being a corporation organized
and existing under the laws of Canada and authorized to carry on the
business of a trust company in all the provinces of Canada, and any
successor trustee appointed under the Voting and Exchange Trust
Agreement.
"UKLA" means the Financial Services Authority in its capacity as the
competent authority for the purposes of Part IV of the Financial
Services Xxx 0000 of the United Kingdom (or any successor Act).
"VOTING AND EXCHANGE TRUST AGREEMENT" means the agreement made between
AMVESCAP, the Corporation and the Trustee in connection with the Plan
of Arrangement in the form of Schedule E annexed to the Merger
Agreement, as amended pursuant to the terms of the Voting and Exchange
Trust Agreement.
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SECTION 2 RANKING OF EXCHANGEABLE SHARES
The Exchangeable Shares shall be entitled to a preference over the
Common Shares and any other shares ranking junior to the Exchangeable Shares
with respect to the payment of dividends and the distribution of assets in the
event of the liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or any other distribution of the assets of the
Corporation among its shareholders for the purpose of winding up its affairs.
SECTION 3 DIVIDENDS
(1) A holder of an Exchangeable Share shall be entitled to receive and the
Board of Directors shall, subject to applicable law, on each AMVESCAP
Dividend Declaration Date, declare a dividend on each Exchangeable
Share:
(a) in the case of a cash dividend declared on the AMVESCAP
Ordinary Shares, in an amount in cash for each Exchangeable
Share equal to the Canadian Dollar Equivalent of the cash
dividend declared on each AMVESCAP Ordinary Share on the
AMVESCAP Dividend Declaration Date;
(b) in the case of a stock dividend declared on the AMVESCAP
Ordinary Shares to be paid in AMVESCAP Ordinary Shares, by the
issue or transfer by the Corporation of such number of
Exchangeable Shares for each Exchangeable Share as is equal to
the number of AMVESCAP Ordinary Shares to be paid on each
AMVESCAP Ordinary Share unless in lieu of such stock dividend
the Corporation elects to effect a corresponding and
contemporaneous and economically equivalent (as determined by
the Board of Directors in accordance with section 2.7(d) of
the Support Agreement) subdivision of the outstanding
Exchangeable Shares; or
(c) in the case of a dividend declared on the AMVESCAP Ordinary
Shares in property other than cash or AMVESCAP Ordinary
Shares, in such type and amount of property for each
Exchangeable Share as is the same as or economically
equivalent to (to be determined by the Board of Directors as
contemplated by section 3(5) hereof) the type and amount of
property declared as a dividend on each AMVESCAP Ordinary
Share.
Such dividends shall be paid out of money, assets or property of the
Corporation properly applicable to the payment of dividends, or out of
authorized but unissued shares of the Corporation, as applicable. The
holders of Exchangeable Shares shall not be entitled to any dividends
other than or in excess of the dividends referred to in this section
3.1.
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(2) Cheques of the Corporation payable at par at any branch of the
bankers of the Corporation shall be issued in respect of any
cash dividends contemplated by section 3(1)(a) hereof and the
sending of such a cheque to each holder of an Exchangeable
Share shall satisfy the cash dividend represented thereby
unless the cheque is not paid on presentation. Certificates
registered in the name of the registered holder of
Exchangeable Shares shall be issued or transferred in respect
of any stock dividends contemplated by section 3(1)(b) hereof
and the sending of such a certificate to each holder of an
Exchangeable Share shall satisfy the stock dividend
represented thereby. Such other type and amount of property in
respect of any dividends contemplated by section 3(1)(c)
hereof shall be issued, distributed or transferred by the
Corporation in such manner as it shall determine and the
issuance, distribution or transfer thereof by the Corporation
to each holder of an Exchangeable Share shall satisfy the
dividend represented thereby. No holder of an Exchangeable
Share shall be entitled to recover by action or other legal
process against the Corporation any dividend that is
represented by a cheque that has not been duly presented to
the Corporation's bankers for payment or that otherwise
remains unclaimed for a period of six years from the date on
which such dividend was payable.
(3) The record date for the determination of the holders of
Exchangeable Shares entitled to receive payment of, and the
payment date for, any dividend declared on the Exchangeable
Shares under section 3(1) hereof shall be the same dates as
the record date and payment date, respectively, for the
corresponding dividend declared on the AMVESCAP Ordinary
Shares. The record date for the determination of the holders
of Exchangeable Shares entitled to receive Exchangeable Shares
in connection with any subdivision, redivision or change of
the Exchangeable Shares under section 3(1)(b) hereof and the
effective date of such subdivision shall be the same dates as
the record and payment date, respectively, for the
corresponding stock dividend declared on the AMVESCAP Ordinary
Shares.
(4) If on any payment date for any dividends declared on the
Exchangeable Shares under section 3(1) hereof the dividends
are not paid in full on all of the Exchangeable Shares then
outstanding, any such dividends that remain unpaid shall be
paid on a subsequent date or dates determined by the Board of
Directors on which the Corporation shall have sufficient
moneys, assets or property properly applicable to the payment
of such dividends.
(5) The Board of Directors shall determine, in good faith and in
its sole discretion, economic equivalence for the purposes of
section 3(1) hereof, and each such determination shall be
conclusive and binding on the Corporation and its
shareholders. In making each such determination, the following
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factors shall, without excluding other factors determined by
the Board of Directors to be relevant, be considered by the
Board of Directors:
(a) in the case of any stock dividend or other distribution
payable in AMVESCAP Ordinary Shares, the number of such shares
issued in proportion to the number of AMVESCAP Ordinary Shares
previously outstanding;
(b) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase AMVESCAP
Ordinary Shares (or securities exchangeable for or convertible
into or carrying rights to acquire AMVESCAP Ordinary Shares),
the relationship between the exercise price of each such
right, option or warrant and the Current Market Price;
(c) in the case of the issuance or distribution of any other form
of property (including without limitation any shares or
securities of AMVESCAP of any class other than AMVESCAP
Ordinary Shares, any rights, options or warrants other than
those referred to in section 3(5)(b) hereof, any evidences of
indebtedness of AMVESCAP or any assets of AMVESCAP), the
relationship between the fair market value (as determined by
the Board of Directors in the manner above contemplated) of
such property to be issued or distributed with respect to each
outstanding AMVESCAP Ordinary Share and the Current Market
Price of an AMVESCAP Ordinary Share; and
(d) in all such cases, the general taxation consequences of the
relevant event to holders of Exchangeable Shares to the extent
that such consequences may differ from the taxation
consequences to holders of AMVESCAP Ordinary Shares as a
result of differences between taxation laws of Canada and the
United Kingdom (except for any differing consequences arising
as a result of differing marginal taxation rates and without
regard to the individual circumstances of holders of
Exchangeable Shares).
SECTION 4 CERTAIN RESTRICTIONS
So long as any of the Exchangeable Shares are outstanding, the
Corporation shall not at any time without, but may at any time with, the
approval of the holders of the Exchangeable Shares given as specified in section
10(2) of these share provisions:
(a) pay any dividends on the Common Shares or any other shares
ranking junior to the Exchangeable Shares, other than stock
dividends payable
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in Common Shares or any such other shares ranking junior to
the Exchangeable Shares, as the case may be;
(b) redeem or purchase or make any capital distribution in respect
of Common Shares or any other shares ranking junior to the
Exchangeable Shares;
(c) redeem or purchase any other shares of the Corporation ranking
equally with the Exchangeable Shares with respect to the
payment of dividends or the distribution of assets in the
event of the liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, or any other
distribution of the assets of the Corporation among its
shareholders for the purpose of winding up its affairs; or
(d) issue any Exchangeable Shares or any other shares of the
Corporation ranking equally with, or superior to, the
Exchangeable Shares other than (i) in accordance with the
terms of an Indenture to be dated the Effective Date among
AMVESCAP, the Corporation and CIBC Mellon Trust Company
pursuant to which the Corporation may issue 6% equity
subordinated debentures to certain holders of securities of
Trimark pursuant to the Plan of Arrangement, and (ii) by way
of stock dividends to the holders of such Exchangeable Shares.
The restrictions in sections 4(1)(a), (b), (c) and (d) hereof shall not apply if
all dividends on the outstanding Exchangeable Shares corresponding to dividends
declared and paid to date on the AMVESCAP Ordinary Shares shall have been
declared and paid on the Exchangeable Shares.
SECTION 5 DISTRIBUTION ON LIQUIDATION
(1) In the event of the liquidation, dissolution or winding-up of the
Corporation or any other distribution of the assets of the Corporation
among its shareholders for the purpose of winding up its affairs,
subject to the exercise by Callco of the Liquidation Call Right, a
holder of Exchangeable Shares shall be entitled, subject to applicable
law, to receive from the assets of the Corporation in respect of each
Exchangeable Share held by such holder on the effective date (the
"LIQUIDATION DATE") of such liquidation, dissolution, winding-up or
other distribution, before any distribution of any part of the assets
of the Corporation among the holders of the Common Shares or any other
shares ranking junior to the Exchangeable Shares, an amount per share
(the "LIQUIDATION Amount") equal to the Current Market Price of an
AMVESCAP Ordinary Share on the last Business Day prior to the
Liquidation Date, which shall be satisfied in full by the Corporation
delivering or causing to be delivered to such holder one AMVESCAP
Ordinary Share, plus an amount equal to all declared and unpaid
dividends on each such
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Exchangeable Share held by such holder on any dividend record date
which occurred prior to the Liquidation Date.
(2) On or promptly after the Liquidation Date, and provided the Liquidation
Call Right has not been exercised by Callco, the Corporation shall pay
or cause to be paid to the holders of the Exchangeable Shares the
Liquidation Amount for each such Exchangeable Share upon presentation
and surrender of the certificates representing such Exchangeable
Shares, together with such other documents and instruments as may be
required to effect a transfer of Exchangeable Shares under the
Companies Act and the Memorandum and Articles of Association of the
Corporation and such additional documents, instruments and payments
(including, without limitation, any applicable Stamp Taxes) as the
Transfer Agent and the Corporation may reasonably require, at the
registered office of the Corporation or at any office of the Transfer
Agent as may be specified by the Corporation by notice to the holders
of the Exchangeable Shares. Payment of the total Liquidation Amount for
such Exchangeable Shares shall be made by transferring or causing to be
transferred to each holder the AMVESCAP Ordinary Shares to which such
holder is entitled and by delivering to such holder, at the address of
such holder recorded in the register of shareholders of the Corporation
for the Exchangeable Shares or by holding for pick-up by such holder at
the registered office of the Corporation or at any office of the
Transfer Agent as may be specified by the Corporation by notice to the
holders of Exchangeable Shares, on behalf of the Corporation
certificates representing AMVESCAP Ordinary Shares (which shares shall
be fully paid and shall be free and clear of any lien, claim or
encumbrance) and a cheque of the Corporation payable at par at any
branch of the bankers of the Corporation in respect of the remaining
portion, if any, of the total Liquidation Amount, in each case less any
amounts withheld on account of tax required to be deducted and withheld
therefrom. On and after the Liquidation Date, the holders of the
Exchangeable Shares shall cease to be holders of such Exchangeable
Shares and shall not be entitled to exercise any of the rights of
holders in respect thereof (including, without limitation, any rights
under the Voting and Exchange Trust Agreement), other than the right to
receive their proportionate part of the total Liquidation Amount,
unless payment of the total Liquidation Amount for such Exchangeable
Shares shall not be made upon presentation and surrender of share
certificates in accordance with the foregoing provisions, in which case
the rights of the holders shall remain unaffected until the total
Liquidation Amount has been paid in the manner hereinbefore provided.
The Corporation shall have the right at any time after the Liquidation
Date to transfer or cause to be issued or transferred to, and deposited
with, the Agent the total Liquidation Amount in respect of the
Exchangeable Shares represented by certificates that have not at the
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Liquidation Date been surrendered by the holders thereof, such
Liquidation Amount to be held by the Agent as trustee for and on behalf
of, and for the use and benefit of, such holders. Upon such deposit
being made, the rights of a holder of Exchangeable Shares after such
deposit shall be limited to receiving its proportionate part of the
total Liquidation Amount for such Exchangeable Shares so deposited,
without interest, and when received by the Agent, all dividends and
other distributions with respect to the AMVESCAP Ordinary Shares to
which such holder is entitled with a record date after the date of such
deposit and before the date of transfer of such AMVESCAP Ordinary
Shares to such holder (in each case less any amounts withheld on
account of tax required to be deducted and withheld therefrom) against
presentation and surrender of the certificates for the Exchangeable
Shares held by them in accordance with the foregoing provisions.
(3) After the Corporation has satisfied its obligations to pay the holders
of the Exchangeable Shares the Liquidation Amount per Exchangeable
Share pursuant to section 5(1) of these share provisions, such holders
shall not be entitled to share in any further distribution of the
assets of the Corporation.
SECTION 6 RETRACTION OF EXCHANGEABLE SHARES BY HOLDER
(1) A holder of Exchangeable Shares shall be entitled at any time, subject
to the exercise by Callco of the Retraction Call Right and otherwise
upon compliance with, and subject to, the provisions of this section 6,
to require the Corporation to redeem any or all of the Exchangeable
Shares registered in the name of such holder for an amount per share
equal to the Current Market Price of an AMVESCAP Ordinary Share on the
last Business Day prior to the Retraction Date (the "RETRACTION
PRICE"), which shall be satisfied in full by the Corporation delivering
or causing to be delivered to such holder one AMVESCAP Ordinary Share
(which on issue will be admitted to listing by the UKLA and admitted to
trading by the LSE) for each Exchangeable Share presented and
surrendered by the holder together with, on the designated payment date
therefor, the full amount of all declared and unpaid dividends on any
such Exchangeable Share held by such holder on any dividend record date
which occurred prior to the Retraction Date. To effect such redemption,
the holder shall present and surrender at the registered office of the
Corporation or at any office of the Transfer Agent as may be specified
by the Corporation by notice to the holders of Exchangeable Shares the
certificate or certificates representing the Exchangeable Shares which
the holder desires to have the Corporation redeem, together with such
other documents and instruments as may be required to effect a transfer
of Exchangeable Shares under the Companies Act and the Memorandum and
Articles of Association of the Corporation and such additional
documents, instruments and payments (including, without limitation, any
applicable Stamp Taxes) as the
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Transfer Agent and the Corporation may reasonably require, and together
with a duly executed statement (the "RETRACTION REQUEST") in the form
of Schedule A hereto or in such other form as may be acceptable to the
Corporation:
(a) specifying that the holder desires to have all or any number
specified therein of the Exchangeable Shares represented by
such certificate or certificates (the "RETRACTED SHARES")
redeemed by the Corporation;
(b) stating the Business Day on which the holder desires to have
the Corporation redeem the Retracted Shares (the "RETRACTION
DATE"), provided that the Retraction Date shall be not less
than 10 Business Days nor more than 15 Business Days after the
date on which the Retraction Request is received by the
Corporation and further provided that, in the event that no
such Business Day is specified by the holder in the Retraction
Request, the Retraction Date shall be deemed to be the 15th
Business Day after the date on which the Retraction Request is
received by the Corporation and subject also to section 6(8);
and
(c) acknowledging the overriding right (the "RETRACTION CALL
RIGHT") of Callco to purchase all but not less than all the
Retracted Shares directly from the holder and that the
Retraction Request shall be deemed to be a revocable offer by
the holder to sell the Retracted Shares to Callco in
accordance with the Retraction Call Right on the terms and
conditions set out in section 6(3) hereof.
(2) Provided that Callco has not exercised the Retraction Call Right, upon
receipt by the Corporation or the Transfer Agent in the manner
specified in section 6(1) of a certificate or certificates representing
the number of Retracted Shares, together with a Retraction Request, and
provided that the Retraction Request is not revoked by the holder in
the manner specified in section 6(7), the Corporation shall redeem the
Retracted Shares effective at the close of business on the Retraction
Date and shall transfer or cause to be issued or transferred to such
holder the AMVESCAP Ordinary Shares to which such holder is entitled
and shall comply with section 6(4) hereof. If only a part of the
Exchangeable Shares represented by any certificate is redeemed (or
purchased by Callco pursuant to the Retraction Call Right), a new
certificate for the balance of such Exchangeable Shares shall be issued
to the holder at the expense of the Corporation.
(3) Subject to the provisions of this section 6, upon receipt by the
Corporation of a Retraction Request, the Corporation shall immediately
notify Callco thereof and shall provide to Callco a copy of the
Retraction Request. In order to
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exercise the Retraction Call Right, Callco must notify the Corporation
of its determination to do so (the "CALLCO CALL NOTICE") within five
Business Days of notification to Callco by the Corporation of the
receipt by the Corporation of the Retraction Request. If Callco does
not so notify the Corporation within such five Business Day period, the
Corporation will notify the holder as soon as possible thereafter that
Callco will not exercise the Retraction Call Right. If Callco delivers
the Callco Call Notice within such five Business Day period, and
provided that the Retraction Request is not revoked by the holder in
the manner specified in section 6(7), the Retraction Request shall
thereupon be considered only to be an offer by the holder to sell the
Retracted Shares to Callco in accordance with the Retraction Call
Right. In such event, the Corporation shall not redeem the Retracted
Shares and Callco shall purchase from such holder and such holder shall
sell to Callco on the Retraction Date the Retracted Shares for a
purchase price (the "PURCHASE PRICE") per share equal to the Retraction
Price per share, plus on the designated payment date therefor, to the
extent not paid by the Corporation on the designated payment date
therefor, any Dividend Amount. To the extent that Callco pays the
Dividend Amount in respect of the Retracted Shares, the Corporation
shall no longer be obligated to pay any declared and unpaid dividends
on such Retracted Shares. For the purpose of completing a purchase
pursuant to the Retraction Call Right, on the Retraction Date Callco
shall transfer or cause to be issued or transferred to the holder of
the Retracted Shares the AMVESCAP Ordinary Shares to which such holder
is entitled. Provided that Callco has complied with the immediately
preceding sentence and section 6(4) hereof, the closing of the purchase
and sale of the Retracted Shares pursuant to the Retraction Call Right
shall be deemed to have occurred as at the close of business on the
Retraction Date and, for greater certainty, no redemption by the
Corporation of such Retracted Shares shall take place on the Retraction
Date. In the event that Callco does not deliver a Callco Call Notice
within such five Business Day period, and provided that the Retraction
Request is not revoked by the holder in the manner specified in section
6(7), the Corporation shall redeem the Retracted Shares on the
Retraction Date and in the manner otherwise contemplated in this
Section 6.
(4) The Corporation or Callco, as the case may be, shall deliver or cause
the Transfer Agent to deliver to the relevant holder, at the address of
the holder recorded in the register of shareholders of the Corporation
for the Exchangeable Shares or at the address specified in the holder's
Retraction Request or by holding for pick-up by the holder at the
registered office of the Corporation or at any office of the Transfer
Agent as may be specified by the Corporation by notice to the holders
of Exchangeable Shares, certificates representing the AMVESCAP Ordinary
Shares (which shares shall be fully paid and shall be free and clear of
any lien, claim or encumbrance and which
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on issue will be admitted to listing by the UKLA and admitted to
trading by the LSE) registered in the name of the holder or in such
other name as the holder may request, and, if applicable and on or
before the payment date therefor, a cheque payable at par at any branch
of the bankers of the Corporation or Callco, as applicable,
representing the aggregate Dividend Amount, in payment of the total
Retraction Price or the total Purchase Price, as the case may be, in
each case less any amounts withheld on account of tax required to be
deducted and withheld therefrom, and such delivery of such certificates
and cheques on behalf of the Corporation or by Callco, as the case may
be, or by the Transfer Agent shall be deemed to be payment of and shall
satisfy and discharge all liability for the total Retraction Price or
total Purchase Price, as the case may be, to the extent that the same
is represented by such share certificates and cheques (plus any tax
deducted and withheld therefrom and remitted to the proper tax
authority).
(5) On and after the close of business on the Retraction Date, the holder
of the Retracted Shares shall cease to be a holder of such Retracted
Shares and shall not be entitled to exercise any of the rights of a
holder in respect thereof (including, without limitation, any rights
under the Voting and Exchange Trust Agreement), other than the right to
receive his proportionate part of the total Retraction Price or total
Purchase Price, as the case may be, unless upon presentation and
surrender of certificates in accordance with the foregoing provisions,
payment of the total Retraction Price or the total Purchase Price, as
the case may be, shall not be made as provided in section 6(4) hereof,
in which case the rights of such holder shall remain unaffected until
the total Retraction Price or the total Purchase Price, as the case may
be, has been paid in the manner hereinbefore provided. On and after the
close of business on the Retraction Date, provided that presentation
and surrender of certificates and payment of the total Retraction Price
or the total Purchase Price, as the case may be, has been made in
accordance with the foregoing provisions, the holder of the Retracted
Shares so redeemed by the Corporation or purchased by Callco shall
thereafter be a holder of the AMVESCAP Ordinary Shares delivered to it.
(6) Notwithstanding any other provision of this Section 6, the Corporation
shall not be obligated to redeem Retracted Shares specified by a holder
in a Retraction Request to the extent that such redemption of Retracted
Shares would be contrary to solvency requirements or other provisions
of applicable law. If the Corporation believes that on any Retraction
Date it would not be permitted by any of such provisions to redeem the
Retracted Shares tendered for redemption on such date, and provided
that Callco shall not have exercised the Retraction Call Right with
respect to the Retracted Shares, the Corporation shall only be
obligated to redeem Retracted Shares specified by a
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holder in a Retraction Request to the extent of the maximum number that
may be so redeemed (rounded down to a whole number of shares) as would
not be contrary to such provisions and shall notify the holder and the
Trustee at least two Business Days prior to the Retraction Date as to
the number of Retracted Shares which will not be redeemed by the
Corporation. In any case in which the redemption by the Corporation of
Retracted Shares would be contrary to solvency requirements or other
provisions of applicable law, the Corporation shall redeem Retracted
Shares in accordance with section 6(2) of these share provisions on a
pro rata basis and shall issue to each holder of Retracted Shares a new
certificate, at the expense of the Corporation, representing the
Retracted Shares not redeemed by the Corporation pursuant to section
6(2) hereof. If the Corporation would otherwise be obligated to redeem
the Retracted Shares pursuant to section 6(2) of these share provisions
but is not obligated to do so as a result of solvency requirements or
other provisions of applicable law, AMVESCAP shall, subject to
applicable law, purchase such Retracted Shares from such holder on the
Retraction Date or as soon as practicable thereafter on payment by
AMVESCAP to such holder of the Purchase Price for each such Retracted
Share, all as more specifically provided in the Voting and Exchange
Trust Agreement.
(7) A holder of Retracted Shares may, by notice in writing given by the
holder to the Corporation before the close of business on the Business
Day immediately preceding the Retraction Date, withdraw its Retraction
Request, in which event such Retraction Request shall be null and void
and, for greater certainty, the revocable offer constituted by the
Retraction Request to sell the Retracted Shares to Callco shall be
deemed to have been revoked.
(8) Notwithstanding any other provisions of this section 6, if:
(a) exercise of the rights of the holders of the Exchangeable
Shares, or any of them, to require the Corporation to redeem
any Exchangeable Shares pursuant to this section 6 on any
Retraction Date would require listing particulars or any
similar document to be issued in order to obtain the approval
of the UKLA to the listing of, or the approval of the LSE to
the trading of, the AMVESCAP Ordinary Shares that would be
required to be delivered to such holders of Exchangeable
Shares in connection with the exercise of such rights; and
(b) as a result of (a) above, it would not be practicable
(notwithstanding the reasonable endeavours of AMVESCAP) to
obtain such approvals in time to enable all or any of such
AMVESCAP Ordinary Shares to be admitted to listing by the UKLA
or admitted to trading by the LSE when so delivered,
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-17-
that Retraction Date shall, notwithstanding any other date
specified or otherwise deemed to be specified in any relevant
Retraction Request, be deemed for all purposes to be the
earlier of (i) the second Business Day immediately following
the date the approvals referred to in section 6(8)(a) are
obtained, and (ii) the date which is 30 Business Days after
the date on which the relevant Retraction Request is received
by the Corporation, and references in these share provisions
to such Retraction Date shall be construed accordingly.
(9) Notwithstanding any other provisions of this section 6, a holder may
not exercise its rights pursuant to this section 6 to require the
Corporation to redeem any or all of the Exchangeable Shares registered
in the name of such holder to the extent that the issue of AMVESCAP
Ordinary Shares resulting on the exercise of such right would require
registration under the United States Securities Act of 1933, as
amended.
SECTION 7 REDEMPTION OF EXCHANGEABLE SHARES BY THE CORPORATION
(1) Subject to applicable law, and provided Callco has not exercised the
Redemption Call Right, the Corporation shall on the Redemption Date
redeem all but not less than all of the then outstanding Exchangeable
Shares for an amount per share equal to the Current Market Price of an
AMVESCAP Ordinary Share on the last Business Day prior to the
Redemption Date (the "REDEMPTION PRICE"), which shall be satisfied in
full by the Corporation causing to be delivered to each holder of
Exchangeable Shares one AMVESCAP Ordinary Share for each Exchangeable
Share held by such holder, together with the full amount of all
declared and unpaid dividends on each such Exchangeable Share held by
such holder on any dividend record date which occurred prior to the
Redemption Date.
(2) In any case of a redemption of Exchangeable Shares under this Section
7, the Corporation shall, at least 60 days before the Redemption Date
(other than a Redemption Date established in connection with an
AMVESCAP Control Transaction or an Exchangeable Share Voting Event),
send or cause to be sent to each holder of Exchangeable Shares a notice
in writing of the redemption by the Corporation or the purchase by
Callco under the Redemption Call Right, as the case may be, of the
Exchangeable Shares held by such holder. In the case of a Redemption
Date established in connection with an AMVESCAP Control Transaction or
an Exchangeable Share Voting Event, the written notice of the
redemption by the Corporation or the purchase by Callco under the
Redemption Call Right will be sent on or before the Redemption Date, on
as many days prior written notice as may be determined by the Board of
Directors to be reasonably practicable in the circumstances. In any
such case, such notice shall set out the formula for determining the
Redemption Price or
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-18-
the Redemption Call Purchase Price, as the case may be, the Redemption
Date and, if applicable, particulars of the Redemption Call Right.
(3) On or after the Redemption Date and provided that the Redemption Call
Right has not been exercised by Callco, the Corporation shall pay or
cause to be paid to the holders of the Exchangeable Shares to be
redeemed the Redemption Price for each such Exchangeable Share,
together with the full amount of all declared and unpaid dividends on
each such Exchangeable Share held by such holder on any dividend record
date which occurred prior to the Redemption Date, upon presentation and
surrender at the registered office of the Corporation or at any office
of the Transfer Agent as may be specified by the Corporation in such
notice of the certificates representing such Exchangeable Shares,
together with such other documents and instruments as may be required
to effect a transfer of Exchangeable Shares under the Companies Act and
the Memorandum and Articles of Association of the Corporation and such
additional documents, instruments and payments (including, without
limitation, any applicable Stamp Taxes) as the Transfer Agent and the
Corporation may reasonably require. Payment of the total Redemption
Price for such Exchangeable Shares shall be made by transferring or
causing to be issued or transferred to each holder the AMVESCAP
Ordinary Shares to which such holder is entitled and by delivering to
such holder, at the address of such holder recorded in the register of
shareholders of the Corporation for the Exchangeable Shares or by
holding for pick-up by such holder at the registered office of the
Corporation or at any office of the Transfer Agent as may be specified
by the Corporation in such notice, on behalf of the Corporation
certificates representing AMVESCAP Ordinary Shares (which shares shall
be fully paid and shall be free and clear of any lien, claim or
encumbrance), and, if applicable, a cheque of the Corporation payable
at par at any branch of the bankers of the Corporation in payment of
any such dividends, in each case less any amounts withheld on account
of tax required to be deducted and withheld therefrom. On and after the
Redemption Date, the holders of the Exchangeable Shares called for
redemption shall cease to be holders of such Exchangeable Shares and
shall not be entitled to exercise any of the rights of holders in
respect thereof (including, without limitation, any rights under the
Voting and Exchange Trust Agreement), other than the right to receive
their proportionate part of the total Redemption Price, unless payment
of the total Redemption Price for such Exchangeable Shares shall not be
made upon presentation and surrender of certificates in accordance with
the foregoing provisions, in which case the rights of the holders shall
remain unaffected until the total Redemption Price has been paid in the
manner hereinbefore provided. The Corporation shall have the right at
any time after the sending of notice of its intention to redeem the
Exchangeable Shares as aforesaid to
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transfer or cause to be issued or transferred to, and deposited with,
the Agent named in such notice the total Redemption Price for the
Exchangeable Shares (except as otherwise provided in this section 7(3))
so called for redemption, or of such of the said Exchangeable Shares
represented by certificates that have not at the date of such deposit
been surrendered by the holders thereof in connection with such
redemption, less any amounts withheld on account of tax required to be
deducted and withheld therefrom, such Redemption Price to be held by
the Agent as trustee for and on behalf of, and for the use and benefit
of, such holders. Upon the later of such deposit being made and the
Redemption Date, the Exchangeable Shares in respect whereof such
deposit shall have been made shall be redeemed and the rights of the
holders thereof after such deposit or Redemption Date, as the case may
be, shall be limited to receiving their proportionate part of the total
Redemption Price for such Exchangeable Shares, without interest, and
when received by the Agent, all dividends and other distributions with
respect to the AMVESCAP Ordinary Shares to which such holder is
entitled with a record date after the later of the date of such deposit
and the Redemption Date and before the date of transfer of such
AMVESCAP Ordinary Shares to such holder (in each case less any amounts
withheld on account of tax required to be deducted and withheld
therefrom), against presentation and surrender of the certificates for
the Exchangeable Shares held by them in accordance with the foregoing
provisions.
SECTION 8 PURCHASE FOR CANCELLATION
Subject to applicable law, the Corporation may at any time and from
time to time purchase for cancellation all or any part of the Exchangeable
Shares.
SECTION 9 VOTING RIGHTS
Except as required by applicable law and by Section 10 hereof, the
holders of the Exchangeable Shares shall not be entitled as such to receive
notice of or to attend any meeting of the shareholders of the Corporation or to
vote at any such meeting. Without limiting the generality of the foregoing, the
holders of the Exchangeable Shares shall not have class votes in the
circumstances described in clauses 2(2)(a) or (e) of the Third Schedule of the
Companies Act as in force on the Effective Date.
SECTION 10 AMENDMENT AND APPROVAL
(1) The rights, privileges, restrictions and conditions attaching to the
Exchangeable Shares may be added to, changed or removed but only with
the approval of the holders of the Exchangeable Shares given as
hereinafter specified.
(2) Any approval given by the holders of the Exchangeable Shares to add to,
change or remove any right, privilege, restriction or condition
attaching to the
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Exchangeable Shares or any other matter requiring the approval or
consent of the holders of the Exchangeable Shares shall be deemed to
have been sufficiently given if it shall have been given in accordance
with applicable law subject to a minimum requirement that such approval
be evidenced by resolution passed by not less than two-thirds of the
votes cast on such resolution at a meeting of holders of Exchangeable
Shares duly called and held at which the holders of at least 10% of the
outstanding Exchangeable Shares at that time are present or represented
by proxy; provided that if at any such meeting the holders of at least
10% of the outstanding Exchangeable Shares at that time are not present
or represented by proxy within one-half hour after the time appointed
for such meeting, then the meeting shall be adjourned to such date not
less than five days thereafter and to such time and place as may be
designated by the Chairman of such meeting. At such adjourned meeting
the holders of Exchangeable Shares present or represented by proxy
thereat may transact the business for which the meeting was originally
called and a resolution passed thereat by the affirmative vote of not
less than two-thirds of the votes cast on such resolution at such
meeting shall constitute the approval or consent of the holders of the
Exchangeable Shares.
SECTION 11 RECIPROCAL CHANGES, ETC. IN RESPECT OF AMVESCAP ORDINARY SHARES
(1) Each holder of an Exchangeable Share acknowledges that the Support
Agreement provides, in part, that so long as any Exchangeable Shares
not owned by AMVESCAP or its affiliates are outstanding, AMVESCAP will
not without the prior approval of the Corporation and the prior
approval of the holders of the Exchangeable Shares given in accordance
with section 10(2) of these share provisions:
(a) issue or distribute AMVESCAP Ordinary Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire AMVESCAP Ordinary Shares) to the holders of all or
substantially all of the then outstanding AMVESCAP Ordinary
Shares by way of stock dividend or other distribution, other
than an issue of AMVESCAP Ordinary Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire AMVESCAP Ordinary Shares) to holders of AMVESCAP
Ordinary Shares (i) who exercise an option to receive
dividends in AMVESCAP Ordinary Shares (or securities
exchangeable for or convertible into or carrying rights to
acquire AMVESCAP Ordinary Shares) in lieu of receiving cash
dividends, or (ii) pursuant to any dividend reinvestment plan
or scrip dividend;
(b) issue or distribute rights, options or warrants to the holders
of all or substantially all of the then outstanding AMVESCAP
Ordinary Shares entitling them to subscribe for or to purchase
AMVESCAP Ordinary
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Shares (or securities exchangeable for or convertible into or
carrying rights to acquire AMVESCAP Ordinary Shares); or
(c) issue or distribute to the holders of all or substantially all
of the then outstanding AMVESCAP Ordinary Shares:
(i) shares or securities of AMVESCAP of any class other
than AMVESCAP Ordinary Shares (other than shares
convertible into or exchangeable for or carrying
rights to acquire AMVESCAP Ordinary Shares);
(ii) rights, options or warrants other than those referred
to in section 11(1)(b) above;
(iii) evidences of indebtedness of AMVESCAP; or
(iv) assets of AMVESCAP,
unless the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets
is issued or distributed simultaneously to holders of the Exchangeable
Shares; provided that, for greater certainty, the above restrictions
shall not apply to any securities issued or distributed by AMVESCAP in
order to give effect to and consummate the transactions contemplated
by, and in accordance with, the Merger Agreement.
(2) Each holder of an Exchangeable Share acknowledges that the Support
Agreement further provides, in part, that so long as any Exchangeable
Shares not owned by AMVESCAP or its affiliates are outstanding,
AMVESCAP will not without the prior approval of the Corporation and the
prior approval of the holders of the Exchangeable Shares given in
accordance with section 10(2) of these share provisions:
(a) subdivide, redivide or change the then outstanding AMVESCAP
Ordinary Shares into a greater number of AMVESCAP Ordinary
Shares;
(b) reduce, combine, consolidate or change the then outstanding
AMVESCAP Ordinary Shares into a lesser number of AMVESCAP
Ordinary Shares; or
(c) reclassify or otherwise change the AMVESCAP Ordinary Shares or
effect an amalgamation, merger, reorganization or other
transaction affecting the AMVESCAP Ordinary Shares,
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unless the same or an economically equivalent change shall
simultaneously be made to, or in, the rights of the holders of the
Exchangeable Shares. The Support Agreement further provides, in part,
that the aforesaid provisions of the Support Agreement shall not be
changed without the approval of the holders of the Exchangeable Shares
given in accordance with section 10(2) of these share provisions.
SECTION 12 ACTIONS BY THE CORPORATION UNDER SUPPORT AGREEMENT
(1) The Corporation will take all such actions and do all such things as
shall be necessary or advisable to perform and comply with and to
ensure performance and compliance by AMVESCAP, Callco and the
Corporation with all provisions of the Support Agreement applicable to
AMVESCAP, Callco and the Corporation, respectively, in accordance with
the terms thereof including, without limitation, taking all such
actions and doing all such things as shall be necessary or advisable to
enforce to the fullest extent possible for the direct benefit of the
Corporation all rights and benefits in favour of the Corporation under
or pursuant to such agreement.
(2) The Corporation shall not propose, agree to or otherwise give effect to
any amendment to, or waiver or forgiveness of its rights or obligations
under, the Support Agreement without the approval of the holders of the
Exchangeable Shares given in accordance with section 10(2) of these
share provisions other than such amendments, waivers and/or forgiveness
as may be necessary or advisable for the purposes of:
(a) adding to the covenants of the other parties to such agreement
for the protection of the Corporation or the holders of the
Exchangeable Shares thereunder;
(b) making such provisions or modifications not inconsistent with
such agreement as may be necessary or desirable with respect
to matters or questions arising thereunder which, in the good
faith opinion of the Board of Directors, it may be expedient
to make, provided that the Board of Directors shall be of the
good faith opinion, after consultation with counsel, that such
provisions and modifications will not be prejudicial to the
interests of the holders of the Exchangeable Shares; or
(c) making such changes in or corrections to such agreement which,
on the advice of counsel to the Corporation, are required for
the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error contained therein, provided that the Board of
Directors shall be of the good faith opinion, after
consultation with counsel, that such changes or
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corrections will not be prejudicial to the interests of the
holders of the Exchangeable Shares.
SECTION 13 LEGEND; CALL RIGHTS; WITHHOLDING RIGHTS
(1) The certificates evidencing the Exchangeable Shares shall contain or
have affixed thereto a legend in form and on terms approved by the
Board of Directors, with respect to the Support Agreement, the
provisions of the Plan of Arrangement relating to the Liquidation Call
Right and the Redemption Call Right, the Voting and Exchange Trust
Agreement (including the provisions with respect to the voting rights
and automatic exchange thereunder) and the Retraction Call Right.
(2) Each holder of an Exchangeable Share, whether of record or beneficial,
by virtue of becoming and being such a holder shall be deemed to
acknowledge each of the Liquidation Call Right, the Retraction Call
Right and the Redemption Call Right, in each case, in favour of Callco,
and the overriding nature thereof in connection with the liquidation,
dissolution or winding-up of the Corporation or any other distribution
of the assets of the Corporation among its shareholders for the purpose
of winding up its affairs, or the retraction or redemption of
Exchangeable Shares, as the case may be, and to be bound thereby in
favour of Callco as therein provided.
(3) The Corporation, Callco, AMVESCAP and the Transfer Agent shall be
entitled to deduct and withhold from any dividend or consideration
otherwise payable to any holder of Exchangeable Shares such amounts as
the Corporation, Callco, AMVESCAP or the Transfer Agent is required to
deduct and withhold with respect to such payment under the Income Tax
Act (Canada) or United Kingdom tax laws or any provision of provincial,
territorial, state, local or foreign tax law, in each case, as amended.
To the extent that amounts are so withheld, such withheld amounts shall
be treated for all purposes hereof as having been paid to the holder of
the Exchangeable Shares in respect of which such deduction and
withholding was made, provided that such withheld amounts are actually
remitted to the appropriate taxing authority. To the extent that the
amount so required to be deducted or withheld from any payment to a
holder exceeds the cash portion of the consideration otherwise payable
to the holder, the Corporation, Callco, AMVESCAP and the Transfer Agent
are hereby authorized to sell or otherwise dispose of such portion of
the consideration as is necessary to provide sufficient funds to the
Corporation, Callco, AMVESCAP or the Transfer Agent, as the case may
be, to enable it to comply with such deduction or withholding
requirement and the Corporation, Callco, AMVESCAP or the Transfer Agent
shall notify the holder thereof and remit any unapplied balance of the
net proceeds of such sale.
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SECTION 14 NOTICES
(1) Any notice, request or other communication to be given to the
Corporation by a holder of Exchangeable Shares shall be in writing and
shall be valid and effective if given by mail (postage prepaid) or by
telecopy or by delivery to the registered office of the Corporation and
addressed to the attention of the Secretary of the Corporation. Any
such notice, request or other communication, if given by mail, telecopy
or delivery, shall only be deemed to have been given and received upon
actual receipt thereof by the Corporation.
(2) Any presentation and surrender by a holder of Exchangeable Shares to
the Corporation or the Transfer Agent of certificates representing
Exchangeable Shares in connection with the liquidation, dissolution or
winding-up of the Corporation or the retraction or redemption of
Exchangeable Shares shall be made by registered mail (postage prepaid)
or by delivery to the registered office of the Corporation or to such
office of the Transfer Agent as may be specified by the Corporation, in
each case, addressed to the attention of the Secretary of the
Corporation. Any such presentation and surrender of certificates shall
only be deemed to have been made and to be effective upon actual
receipt thereof by the Corporation or the Transfer Agent, as the case
may be. Any such presentation and surrender of certificates made by
registered mail shall be at the sole risk of the holder mailing the
same.
(3) Any notice, request or other communication to be given to a holder of
Exchangeable Shares by or on behalf of the Corporation shall be in
writing and shall be valid and effective if given by mail (postage
prepaid) or by delivery to the address of the holder recorded in the
register of shareholders of the Corporation or, in the event of the
address of any such holder not being so recorded, then at the last
known address of such holder. Any such notice, request or other
communication, if given by mail, shall be deemed to have been given and
received on the third Business Day following the date of mailing and,
if given by delivery, shall be deemed to have been given and received
on the date of delivery. Accidental failure or omission to give any
notice, request or other communication to one or more holders of
Exchangeable Shares shall not invalidate or otherwise alter or affect
any action or proceeding to be taken by the Corporation pursuant
thereto.
SECTION 15 DISCLOSURE OF INTERESTS IN EXCHANGEABLE SHARES
The Corporation shall be entitled to require any holder of an
Exchangeable Share or any Person who the Corporation knows or has reasonable
cause to believe holds any interest whatsoever in an Exchangeable Share to
confirm that fact or to give such details as to whom has an interest in such
Exchangeable Share as would be required (if the Exchangeable Shares were a class
of "equity shares" of Exchangeco)
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under section 101 of the Securities Act or as would be required under the
articles of AMVESCAP or any laws or regulations, or pursuant to the rules or
regulations of any regulatory authority, of the United Kingdom if the
Exchangeable Shares were AMVESCAP Ordinary Shares
SECTION 16 STAMP TAX
Notwithstanding any other provision herein, a holder of Exchangeable
Shares or a Person to whom Exchangeable Shares are issued (in each case other
than the Corporation, its affiliates (except for affiliates who, at the date of
the Merger Agreement, were affiliates of AMVESCAP and holders of common shares
in the capital of Trimark Financial Corporation and except in respect of the
conversion into or exchange of such shares for AMVESCAP Ordinary Shares,
Exchangeable Shares or Debentures and any transfer of such securities), the
Transfer Agent or the Agent) shall be responsible for any and all Stamp Taxes
payable by any Person in connection with the transfer or issuance of such
Person's shares or their exchange for AMVESCAP Ordinary Shares or the transfer
or issue of AMVESCAP Ordinary Shares to such holder or Person pursuant to a
redemption of the Exchangeable Shares, a liquidation of the Corporation, or on
the exercise of the Liquidation Call Right, the Redemption Call Right or the
Retraction Call Right (or any transaction or event completed in furtherance of
such transfer, exchange or issuance); provided that, in no event shall any
Person (other than the Corporation, its affiliates, the Transfer Agent and the
Agent) be entitled to rely on the provisions of this section 16 in any action,
suit or proceeding relating to Stamp Taxes brought against any holder of
Exchangeable Shares or any Person to whom Exchangeable Shares are issued. In no
event will the Corporation, its affiliates, the Transfer Agent or the Agent be
responsible for any Stamp Taxes and the Corporation, its affiliates, the
Transfer Agent and/or the Agent shall make such regulations and arrangements as
are necessary to ensure that holders and such Persons pay all applicable Stamp
Taxes.
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SCHEDULE A
RETRACTION REQUEST
[TO BE PRINTED ON EXCHANGEABLE SHARE CERTIFICATES]
To: AMVESCAP Inc. ("Exchangeco") and AVZ Callco Inc. ("Callco")
c/o CIBC mellon Trust Company
000 Xxx Xxxxxx
Xxxxxxxx Xxxxx Xxxx
Securities Level
Toronto (Ontario) Canada
X0X 0X0
This notice is given pursuant to Section 6 of the provisions (the
"SHARE PROVISIONS") attaching to the Exchangeable Shares of Exchangeco
represented by this certificate and all capitalized words and expressions used
in this notice that are defined in the Share Provisions have the meanings
ascribed to such words and expressions in such Share Provisions.
The undersigned hereby notifies Exchangeco that, provided that the
Retraction Call Right referred to below has not been exercised, the undersigned
desires to have Exchangeco redeem in accordance with Section 6 of the Share
Provisions:
o all share(s) represented by this certificate; or
o _______ share(s) only represented by this certificate.
The undersigned hereby notifies Exchangeco that the Retraction Date
shall be _____________________.
NOTE: The Retraction Date must be a Business Day and must not be
less than 10 Business Days nor more than 15 Business Days
after the date upon which this notice is received by
Exchangeco. If no such Business Day is specified above, the
Retraction Date shall be deemed to be the 15th Business Day
after the date on which this notice is received by Exchangeco.
The undersigned acknowledges the overriding Retraction Call Right of
Callco to purchase all but not less than all the Retracted Shares from the
undersigned and that this notice is and shall be deemed to be a revocable offer
by the undersigned to sell the Retracted Shares to Callco in accordance with the
Retraction Call Right on the Retraction Date for the Purchase Price and on the
other terms and conditions set out in section 6(3) of the Share Provisions. This
Retraction Request, and this offer to sell the Retracted Shares to Callco, may
be revoked and withdrawn by the
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undersigned only by notice in writing given to Exchangeco at any time before the
close of business on the Business Day immediately preceding the Retraction Date.
The undersigned acknowledges that if, as a result of solvency
provisions of applicable law, Exchangeco is unable to redeem all Retracted
Shares, the Retracted Shares will be automatically exchanged pursuant to the
Voting and Exchange Trust Agreement so as to require AMVESCAP to purchase the
unredeemed Retracted Shares.
The undersigned hereby represents and warrants to Callco and Exchangeco
that the undersigned:
o is
(select one)
o is not
a non-resident of Canada for purposes of the Income Tax Act (Canada). THE
UNDERSIGNED ACKNOWLEDGES THAT IN THE ABSENCE OF AN INDICATION THAT THE
UNDERSIGNED IS NOT A NON-RESIDENT OF CANADA, WITHHOLDING ON ACCOUNT OF CANADIAN
TAX MAY BE MADE FROM AMOUNTS PAYABLE TO THE UNDERSIGNED ON THE REDEMPTION OR
PURCHASE OF THE RETRACTED SHARES.
o The undersigned hereby represents and warrants to Callco and Exchangeco that
the undersigned is not a person within the United States of America, its
territories or possessions or any state thereof, or the District of Columbia
(collectively, the "United States") or a U.S. person (within the meaning of
Regulation S under the United States Securities Act of 1933, as amended) and is
not making this Retraction Request for the account or benefit of a person within
the United States or such a U.S. person.
The undersigned hereby represents and warrants to Callco and Exchangeco
that the undersigned has good title to, and owns, the share(s) represented by
this certificate to be acquired by Callco or Exchangeco, as the case may be,
free and clear of all liens, claims and encumbrances.
--------------------------- ------------------------------------------ ------------------------------------
(Date) (Signature of Shareholder) (Guarantee of Signature)
o Please check box if the certificates for AMVESCAP Ordinary Shares and
any cheque(s) resulting from the retraction or purchase of the
Retracted Shares are to be held for pick-up by the shareholder from the
Transfer Agent,
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failing which such certificates and cheque(s) will be mailed to the
last address of the shareholder as it appears on the register.
NOTE: This panel must be completed and this certificate, together
with such additional documents and payments (including,
without limitation, any applicable Stamp Taxes) as the
Transfer Agent may require, must be deposited with the
Transfer Agent. The securities and any cheque(s) resulting
from the retraction or purchase of the Retracted Shares will
be issued and registered in, and made payable to,
respectively, the name of the shareholder as it appears on the
register of Exchangeco and the certificates for AMVESCAP
Ordinary Shares and any cheque(s) resulting from such
retraction or purchase will be delivered to such shareholder
as indicated above, unless the form appearing immediately
below is duly completed.
Date: __________________
Name of Person in Whose Name Securities or Cheque(s)
Are to be Registered, Issued or Delivered (please print):
Street Address or P.O. Box:
Signature of Shareholder:
City, Province and Postal Code:
Signature Guaranteed by:
NOTE: If this Retraction Request is for less than all of the shares
represented by this certificate, a certificate representing
the remaining share(s) of Exchangeco represented by this
certificate will be issued and registered in the name of the
shareholder as it appears on the register of Exchangeco,
unless the Share Transfer Power on the share certificate is
duly completed in respect of such share(s).
110
SCHEDULE C
REGULATORY APPROVALS
CANADA
o expiration or earlier termination of the waiting period under Part IX
of the Competition Act (Canada) and receipt of an advance ruling
certificate ("ARC") pursuant to the Competition Act (Canada) or, in the
alternative to an ARC, a no-action letter from the Commissioner of
Competition
o if applicable, a determination by the Minister responsible for
Investment Canada under the Investment Canada Act (Canada) that the
Arrangement is of "net benefit to Canada" for purposes of such Act on
terms and conditions satisfactory to AMVESCAP, acting reasonably
o exemption orders from the Canadian Securities Regulatory Authorities
from the registration and prospectus requirements with respect to the
Exchangeable Share structure
o approval of the Toronto Stock Exchange regarding the conditional
listing of the Exchangeable Shares and the AMVESCAP Equity Subordinated
Debentures
o approval of the Canadian Securities Regulatory Authorities and notice
to the unitholders of the Funds of the change in control of the manager
of the Funds, as required pursuant to National Instrument 81-102
o consent of the Minister of Finance (Canada) to the transactions
contemplated by the Arrangement under the sections 518(3)(a)(i) to (v)
under the Bank Act (Canada) unless prior consent has been provided in a
form acceptable to each of AMVESCAP and Trimark, acting reasonably
o approval of Canadian Securities Regulatory Authorities, if necessary,
regarding the acquisition of the Trimark Shares
o the non-objection of the Director under the Securities Act pursuant to
section 104 of the Regulation made under such Act and compliance with
corresponding applicable provisions, if any, under securities
legislation of the other provinces and territories of Canada to the
indirect acquisition by AMVESCAP of beneficial ownership, control or
direction of securities of another registrant
o notice to the OSC pursuant to section 217 of the Regulation to the
Securities Act and to the QSC pursuant to section 228 of the Regulation
to the Securities Act (Quebec) and other applicable Canadian Securities
Regulatory Authorities regarding the expected acquisition of the
Trimark Shares by AMVESCAP
o approval of applicable Canadian stock exchanges, if necessary,
regarding amendments to and acceleration of the Trimark Options
o requisite approvals pursuant to section 375(1) of the Trust and Loan
Companies Act (Canada)
000
-0-
XXXXXX XXXXXX
o if applicable, expiration or earlier termination of the waiting period
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000
XXXXXX XXXXXXX
o approval of the LSE and the UKLA to the publication of the AMVESCAP
Circular (if required in accordance with the rules of such authorities)
o approval of the LSE and the UKLA to the publication of the AMVESCAP
Listing Particulars (if required in accordance with the rules of such
authorities)
o final consent of the UK Treasury under section 765 of the Income and
Corporation Taxes Act 1988 to all of those transactions which require
such consent and which are necessary to implement the transactions
contemplated herein
o the relevant approvals, if any, from the UK Secretary of State for
Trade and Industry or the European Commission (as appropriate) on terms
and conditions satisfactory to AMVESCAP, acting reasonably, or AMVESCAP
obtaining confirmation on terms satisfactory to it that the
transactions referred to in this Agreement or any matter relating
thereto will not be referred to the UK Competition Commission
o admission to the Official List of the UKLA and admission to trading on
the LSE of the AMVESCAP Ordinary Shares to be issued at the Effective
Time, in accordance with the applicable rules of such authorities
112
SCHEDULE F
TERMS OF AMVESCAP EQUITY SUBORDINATED DEBENTURES
ISSUER: o Exchangeco (the "ISSUER") and all of its
obligations in respect of the Debentures
will be fully and unconditionally guaranteed
by AMVESCAP pursuant to a guarantee of
AMVESCAP on terms and conditions mutually
agreeable to Trimark and AMVESCAP each
acting reasonably.
ISSUE: o AMVESCAP Equity Subordinated Debentures (the
"DEBENTURES"). The Debentures will be issued
under a trust indenture (the "INDENTURE").
AMVESCAP shall be a party to the Indenture,
which will incorporate the guarantee of
AMVESCAP. Holders of Debentures will also be
issued a Certificate of Entitlement which
will allow holders to receive, on a
conversion of the Debentures (or such other
event that results in a holder receiving
Exchangeable Shares) and for no additional
consideration, the voting rights, the
automatic exchange right and the automatic
exchange on liquidation (and any other
similar rights that may be available from
time to time to holders of Exchangeable
Shares).
ISSUE PRICE: o $1,000 per Debenture
INTEREST: o 6.00% per annum, payable semi-annually,
commencing 6 months from the Effective Date
TERM: o 3 years
MATURITY AMOUNT: o $1,000 per Debenture. Unless an Event of
Default has occurred and is continuing,
Issuer may, upon not less than 10 Business
Days and not more than 20 Business Days
prior notice, in lieu of paying the
principal amount of the Debentures in cash
at maturity, deliver that number of
Exchangeable Shares obtained by dividing the
principal amount of the Debentures by 95% of
the then Current Market Price (as defined
below) of the AMVESCAP Ordinary Shares (the
"SHARES").
CONVERSION PRIVILEGE: o Each outstanding Debenture will be
convertible (subject to notice and other
usual limitations) at any time and from time
to time, at the option of the holder, into
the Conversion Number of Exchangeable
Shares.
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o The Conversion Number of Exchangeable Shares
will be calculated as of the date of the
conversion as:
the Conversion Value, being the lesser of
the AMVESCAP Share Value (as defined
below) and $1,200, divided by the then
Current Market Price of the Shares.
o The AMVESCAP Share Value as at any date will
be the amount equal to the AMVESCAP Share
Rate multiplied by the Current Market Price
of the Shares as at such date.
o The AMVESCAP Share Rate will be equal to
$1,000 divided by (i) the Closing Price if
the Closing Price Ratio is equal to or
greater than 0.875 and is less than or equal
to 1.125 or (ii) $18.8193 if the Closing
Price Ratio is less than 0.875 or (iii)
$24.1963 if the Closing Price Ratio is
greater than 1.125.
o The Conversion Number of Exchangeable Shares
is subject to adjustment upon the occurrence
of certain events such as the subdivision or
consolidation of the outstanding
Exchangeable Shares or the making of certain
distributions to the holders of Exchangeable
Shares (other than customary dividends paid
in the ordinary course)
OPTIONAL PAYMENT IN CASH o The Issuer has the option in lieu of
UPON CONVERSION: delivering Exchangeable Shares upon a
conversion of Debentures, to pay the
Conversion Value in cash for each $1,000
principal amount of Debentures converted.
REDEMPTION: o At any time, subject to not less than 20
days and not more than 30 days prior notice,
Issuer has the right to redeem each $1,000
principal amount of Debentures for cash at a
price of $1,200 plus accrued and unpaid
interest on such $1,000 principal amount
(the "REDEMPTION AMOUNT"). Unless an Event
of Default has occurred and is continuing,
Issuer may satisfy the Redemption Amount by
the delivery of a number of Exchangeable
Shares equal to the Redemption Amount
divided by 95% of the Current Market Price
at the date of notice of redemption.
000
-0-
XXXXXXX XXXXXX PRICE: o In respect of a Share on any date, the
quotient obtained by dividing (a) the
aggregate of the Daily Value of Trades for
each day during the period of 20 consecutive
trading days ending not more than three
trading days before such date; by (b) the
aggregate volume of Shares used to calculate
such Daily Value of Trades; where "Daily
Value of Trades" means, in respect of the
Shares on any trading day, the Canadian
dollar equivalent of the product of (a) the
volume weighted average price of Shares on
the LSE (or, if the Shares are not then
listed on the LSE, on such other stock
exchange or automated quotation system on
which the Shares are listed or quoted, as
the case may be, as may be selected by the
board of directors of AMVESCAP for such
purpose) on such date, as determined by
Bloomberg L.P. or another reputable, third
party information source selected by the
board of directors of AMVESCAP; and (b) the
aggregate volume of Shares traded on such
day on the LSE or such other stock exchange
or automated quotation system and used to
calculate such volume weighted average
price; provided that any such selections by
the board of directors of AMVESCAP shall be
conclusive and binding.
RANK: o The Debentures will be subordinated to all
other indebtedness and obligations of Issuer
and of AMVESCAP.
CURRENCY: o All prices in this Schedule are in Canadian
dollars. AMVESCAP Ordinary Share prices will
be converted into their Canadian dollar
equivalent at the exchange rates on the
dates of such prices.
LISTING: o The Debentures will be listed on the Toronto
Stock Exchange.
MERGER: o The Indenture will provide that, so long as
any Debentures remain outstanding, the
Issuer will continue to be a wholly-owned
subsidiary of AMVESCAP. In addition, the
Indenture will provide that, so long as any
Debentures remain outstanding, subject to
certain exceptions, AMVESCAP will not
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enter into any transaction (whether by way
of merger, consolidation, reorganization,
amalgamation (except with one or more of its
wholly-owned subsidiaries), conveyance,
transfer, lease, sale or otherwise) whereby
all or substantially all of its undertaking
or assets would become the property of
another person unless AMVESCAP's successor
assumes all of the covenants and obligations
of AMVESCAP under the Indenture.
EVENTS OF DEFAULT: o The Indenture will contain certain Events of
Default consistent with other equity
subordinated debenture issues in the
Canadian market, including, without
limitation: (i) failure to pay principal or
interest when due (there will be a 30 day
cure period for failure to pay interest when
due); (ii) default in the performance, or
breach, of any other covenant or agreement
of the Issuer under the Indenture or the
Debentures or AMVESCAP under its guarantee
and the continuance of such default for 60
days after written notice to the Company by
the Trustee or by the holders of not less
than 25% in principal amount of outstanding
Debentures; (iii) the occurrence of any
default with respect to any other
indebtedness of the Issuer or AMVESCAP
having an outstanding principal amount of
U.S.$50 million or more, that has caused the
holder thereof to declare such indebtedness
to be due and payable prior to its maturing
and such acceleration is not rescinded or
annulled within 10 days; and (iv) certain
events of bankruptcy, insolvency or
reorganization affecting the Issuer or
AMVESCAP.
116
SCHEDULE G
TRIMARK REPRESENTATIONS AND WARRANTIES
(a) Organization.
Each of Trimark and the Trimark Material Subsidiaries has been duly
incorporated or formed under all applicable Laws, is validly subsisting
and has full corporate or legal power and authority to own its
properties and conduct its businesses as currently owned and conducted.
The only material subsidiaries of Trimark are the Trimark Material
Subsidiaries. All of the outstanding shares and other ownership
interests of the Trimark Material Subsidiaries are held directly or
indirectly by Trimark and are validly issued, fully paid and
non-assessable and all such shares and other ownership interests are
owned directly or indirectly by Trimark, free and clear of all material
liens, claims or encumbrances, except as has been disclosed in writing
by Trimark to AMVESCAP in a form acceptable to AMVESCAP or pursuant to
restrictions on transfers contained in constating documents, and except
as aforesaid there are no outstanding options, rights, entitlements,
understandings or commitments (contingent or otherwise) regarding the
right to acquire any such shares or other ownership interests in any of
the Trimark Material Subsidiaries. Trimark has disclosed in writing to
AMVESCAP in a form acceptable to AMVESCAP the names and jurisdictions
of incorporation of each of the Trimark Material Subsidiaries. Each of
the Funds are (i) duly incorporated or are duly organized as trusts,
and are validly existing or are assets of an insurance company held on
a segregated basis pursuant to applicable insurance legislation, and
(ii) up-to-date in the filing of all information required to be filed
according to the applicable Laws. No proceedings have been taken or
authorized by Trimark or any of its subsidiaries or, to Trimark's
knowledge (after due enquiry), by any other Person, with respect to the
bankruptcy, insolvency, liquidation, dissolution or winding up of any
of the Funds.
(b) Capitalization. The authorized capital of Trimark consists of an
unlimited number of Trimark Common Shares and an unlimited number of
preferred shares, issuable in series. As of the date hereof, there are
94,275,450 Trimark Common Shares issued and outstanding, and options to
acquire an aggregate of 7,280,150 Trimark Common Shares are granted and
outstanding under the Trimark Stock Option Plan. As of the date hereof,
there are no preferred shares issued or outstanding. Except as
described in the preceding sentences of this Section (b) and in Section
(a) above, there are no options, warrants, conversion privileges or
other rights, agreements, arrangements or commitments (pre-emptive,
contingent or otherwise) obligating Trimark or any Trimark
117
-2-
Material Subsidiary to issue or sell any shares of Trimark or any of
the Trimark Material Subsidiaries or securities or obligations of any
kind convertible into or exchangeable for any shares of Trimark or any
Trimark Material Subsidiary. All outstanding Trimark Common Shares have
been duly authorized and are validly issued and outstanding as fully
paid and non-assessable shares, free of pre-emptive rights. Except as
described in the preceding sentences of this Section (b), there are no
outstanding bonds, debentures or other evidences of indebtedness of
Trimark or any subsidiary having the right to vote (or that are
convertible for or exercisable into securities having the right to
vote) with the holders of the Trimark Common Shares on any matter.
Except as has been set forth in writing by Trimark to AMVESCAP in a
form acceptable to AMVESCAP or as Publicly Disclosed by Trimark, there
are no outstanding contractual obligations of Trimark or any of the
Trimark Material Subsidiaries to repurchase, redeem or otherwise
acquire any of its outstanding securities or with respect to the voting
or disposition of any outstanding securities of any of the Trimark
Material Subsidiaries.
(c) Authority and No Violation.
(i) Subject to paragraphs (A) and (B) below, Trimark has the
requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement by Trimark and
(subject to obtaining the Regulatory Approvals) the
consummation by Trimark of the transactions contemplated by
this Agreement have been duly authorized by its Board of
Directors and no other corporate proceedings on its part are
necessary to authorize this Agreement or the transactions
contemplated hereby, other than:
(A) with respect to the Trimark Circular and other
matters relating solely thereto, the approval of the
Board of Directors of Trimark; and
(B) with respect to the completion of the Arrangement,
the approval of the Trimark Securityholders.
(ii) This Agreement has been duly executed and delivered by Trimark
and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable Laws affecting
creditors' rights generally, and to general principles of
equity.
(iii) The Board of Directors of Trimark (Messrs. Krembil, Labatt,
Binnington, Howe, Xxxxxx and Waitzer having declared their
interest and abstaining from voting thereon) has (A)
determined as of the date hereof unanimously that the
Arrangement is fair to the holders of the Trimark Common
Shares and is in the best interests of Trimark, (B) received
an opinion from RBC Dominion Securities Inc. to the effect
118
-3-
that, as of the date of this Agreement, the Arrangement is
fair from a financial point of view to Trimark shareholders
and (C) determined as of the date hereof to unanimously
recommend that the holders of the Trimark Common Shares vote
in favour of the Arrangement. Each of Trimark's directors has
advised Trimark that, as of the date hereof, they intend to
vote Trimark Common Shares held by them in favour of the
Arrangement and (except with respect to Messrs. Binnington,
Howe, Krembil and Labatt), unless the Board of Directors of
Trimark shall have failed to recommend or shall have
withdrawn, modified or changed in a manner adverse to AMVESCAP
its approval or recommendation of this Agreement or the
Arrangement or shall have approved or recommended any
unsolicited Superior Proposal in accordance with Section 4.6,
will so represent in the Trimark Circular. Trimark is not
subject to a shareholder rights plan or "poison pill" or
similar plan.
(iv) The approval of this Agreement, the execution and delivery by
Trimark of this Agreement and the performance by it of its
obligations hereunder and the completion of the Arrangement
and the transactions contemplated thereby, will not, except as
disclosed in writing by Trimark to AMVESCAP in a form
acceptable to AMVESCAP:
(A) result in a violation or breach of, require any
consent to be obtained under or give rise to any
termination, purchase or sale rights or payment
obligation under any provision of:
(I) its or any Trimark Material Subsidiary's
certificate of incorporation, articles,
by-laws or other charter documents,
including any unanimous shareholder
agreement or any constating document of a
Fund;
(II) any Laws, judgment or decree (subject to
obtaining the Regulatory Approvals relating
to Trimark), except to the extent that the
violation or breach of, or failure to obtain
any consent under, any Laws, judgment or
decree would not, individually or in the
aggregate, have a Material Adverse Effect on
Trimark; or
(III) except as would not, individually or in the
aggregate, have a Material Adverse Effect on
Trimark, any contract, agreement, license,
franchise or permit to which Trimark or any
subsidiary or any Fund is party or by which
it is bound or subject or is the
beneficiary;
119
-4-
(B) give rise to any right of termination or acceleration
of indebtedness of Trimark or any subsidiary or any
Fund, or cause any such indebtedness to come due
before its stated maturity, or cause any available
credit of Trimark or any subsidiary or any Fund to
cease to be available, other than as would not,
individually or in the aggregate, have a Material
Adverse Effect on Trimark; or
(C) except as would not, individually or in the
aggregate, have a Material Adverse Effect on Trimark
or a Material Adverse Effect on the Funds (taken in
the aggregate), result in the imposition of any
encumbrance, charge or lien upon any of its assets or
the assets of any Trimark Material Subsidiary or any
Fund, or restrict, hinder, impair or limit the
ability of Trimark or any Trimark Material Subsidiary
to carry on the business of Trimark or any Trimark
Material Subsidiary as and where it is now being
carried on.
No consent, waiver, approval, order or authorization of, or
declaration or filing with, any Governmental Entity is
required to be obtained by Trimark and its subsidiaries and
the Funds in connection with the execution and delivery of
this Agreement or the consummation by Trimark of the
transactions contemplated hereby other than (A) any approvals
required by the Interim Order, (B) the Final Order, (C)
filings with the Director under the OBCA, (D) the Regulatory
Approvals relating to Trimark and its subsidiaries and (E) any
other consents, approvals, orders, authorizations,
declarations or filings of or with a Governmental Entity which
have been disclosed in writing by Trimark to AMVESCAP in a
form acceptable to AMVESCAP or which, if not obtained, would
not, individually or in the aggregate, have a Material Adverse
Effect on Trimark.
(d) No Defaults. Subject to obtaining the Regulatory Approvals relating to
Trimark and its subsidiaries and except as has been disclosed in
writing by Trimark to AMVESCAP in a form acceptable to AMVESCAP,
neither Trimark nor any of its subsidiaries nor any Fund is in default
under, and there exists no event, condition or occurrence which, after
notice or lapse of time or both, would constitute such a default under,
any contract, agreement, license or franchise to which it is a party
which would, if terminated due to such default, cause a Material
Adverse Effect on Trimark.
(e) Absence of Certain Changes or Events. Except as has been (A) disclosed
in writing by Trimark to AMVESCAP in a form acceptable to AMVESCAP or
(B) Publicly Disclosed by Trimark, or (C) Publicly Disclosed by the
Funds, each of Trimark, the Trimark Material Subsidiaries and the Funds
has conducted
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its business only in the ordinary and regular course of business
consistent with past practice and there has not occurred:
(i) a Material Adverse Change with respect to Trimark or any of
the Funds;
(ii) any damage, destruction or loss not fully covered by insurance
that could reasonably be expected to have a Material Adverse
Effect on Trimark;
(iii) any redemption, repurchase or other acquisition of Trimark
Common Shares by Trimark or any declaration, setting aside or
payment of any dividend or other distribution (whether in
cash, stock or property) with respect to Trimark Common
Shares, other than regular quarterly dividends on the Trimark
Common Shares;
(iv) any material increase in or modification of the compensation
payable or to become payable by it to any of its directors or
officers, or any grant to any such director or officer of any
increase in severance or termination pay;
(v) any material increase in or modification of any bonus,
pension, employee insurance or benefit arrangement (including
the granting of stock options, restricted stock awards or
stock appreciation rights) other than the adoption of the
Trimark Deferred Share Unit Plan and the acceleration of
vesting of unvested Trimark Shares under the Trimark Employee
Profit Sharing Plan, made to, for or with any of its directors
or officers;
(vi) any acquisition or sale of its property or assets aggregating
10% or more of Trimark's total consolidated property and
assets as at March 31, 1999 other than in the ordinary and
regular course of business consistent with past practice;
(vii) any entering into, amendment of, relinquishment, termination
or non-renewal by it of any material contract, agreement,
license, franchise, lease transaction, commitment or other
right or obligation that could reasonably be expected to have
a Material Adverse Effect on Trimark;
(viii) any resolution to approve a split, consolidation or
reclassification of any of its outstanding shares or in
respect of each of the Funds, any of its outstanding units;
(ix) any material change in its accounting methods, principles or
practices;
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(x) any guarantee of the payment of material indebtedness or any
incurrence of material indebtedness for money borrowed or any
issue or sale of any debt securities except in the ordinary
and regular course of business consistent with past practice;
or
(xi) except in the usual, ordinary and regular course of business
and consistent with past practice: (A) any satisfaction or
settlement of any claims or liabilities prior to the same
being due, which were, individually or in the aggregate,
material; or (B) any grant of any waiver, exercise of any
option or relinquishment of any contractual rights which were,
individually or in the aggregate, material.
(f) Employment Matters.
(i) Except as has been disclosed in writing by Trimark to AMVESCAP
in a form acceptable to AMVESCAP, neither Trimark nor any
Trimark Material Subsidiary nor any Fund is a party to any
agreement, obligation or understanding providing for severance
or termination payments to, or any employment agreement with,
any director or officer other than any common law obligations
of reasonable notice of termination or pay in lieu thereof and
any statutory obligations.
(ii) Except as has been disclosed in writing by Trimark to AMVESCAP
in a form acceptable to AMVESCAP, neither Trimark nor any
Trimark Material Subsidiary nor any Fund is subject to any
litigation, actual or, to the knowledge of Trimark,
threatened, relating to employment or termination of
employment of employees or independent contractors, other than
those claims or such litigation as would, individually or in
the aggregate, not have a Material Adverse Effect on Trimark.
(iii) Trimark, all Trimark Material Subsidiaries and all Funds have
operated in accordance with all applicable Laws with respect
to employment and labour, including, but not limited to,
employment and labour standards, occupational health and
safety, employment equity, pay equity, workers' compensation,
human rights and labour relations and there are no current,
pending or, to the knowledge of Trimark, threatened
proceedings before any board or tribunal with respect to any
of the above areas, other than as has been set forth in
writing by Trimark to AMVESCAP in a form acceptable to
AMVESCAP or where the failure to so operate or such
proceedings would, individually or in the aggregate, not have
a Material Adverse Effect on Trimark.
(iv) Except as has been Publicly Disclosed by Trimark or disclosed
in writing by Trimark to AMVESCAP in a form acceptable to
AMVESCAP, there are no outstanding stock appreciation rights,
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phantom equity or similar rights, agreements, arrangements or
commitments based upon the book value, income or any other
attribute of Trimark, any Trimark Material Subsidiary or any
Fund.
(g) Financial Statements. Each of (i) the audited consolidated financial
statements for Trimark as at and for each of the 12-month periods ended
March 31, 1999 and 1998; (ii) the unaudited consolidated financial
statements for Trimark as at and for the 12-month period ended March
31, 2000; and (iii) the audited financial statements for each of the
Funds for the fiscal years ended December 31, 1999 and 1998 have been
prepared in accordance with Canadian generally accepted accounting
principles (subject, in the case of such unaudited financial
statements, to the absence of notes and to usual year-end adjustments),
and such financial statements present fairly, in all material respects,
the consolidated financial position and results of operations of
Trimark and its subsidiaries or of such Fund, as applicable, as of the
respective dates thereof and for the respective periods covered
thereby, subject, in the case of such unaudited financial statements,
to usual year-end adjustments.
(h) Books and Records. The financial books, records and accounts of
Trimark, its subsidiaries and each of the Funds, in all material
respects, (i) have been maintained in accordance with good business
practices on a basis consistent with prior years, (ii) are stated in
reasonable detail and accurately and fairly reflect the transactions
and dispositions of the assets of Trimark and its subsidiaries and the
Funds and (iii) accurately and fairly reflect the basis for the Trimark
consolidated financial statements or such Fund's financial statements,
as applicable. Except as has been disclosed in writing by Trimark to
AMVESCAP in a form acceptable to AMVESCAP, Trimark's and the Trimark
Material Subsidiaries' corporate minute books contain minutes of all
meetings and resolutions of the directors (including all committees of
directors) and shareholders held to December 31, 1999 has been provided
to AMVESCAP, and no matters (other than the executive severance
agreements referred to in Section 4.4(e)) were considered at any
meetings subsequent to December 31, 1999 which, if effected subsequent
to the date hereof and prior to the Effective Date, would constitute a
breach of Section 4.3(a).
(i) Litigation, Etc. Except as has been disclosed in writing by Trimark to
AMVESCAP in a form acceptable to AMVESCAP or Publicly Disclosed by
Trimark, there is no claim, action, proceeding or investigation pending
or, to the knowledge of Trimark, threatened against Trimark, any
Trimark Material Subsidiary or any Fund before any court or
Governmental Entity that would reasonably be expected to have a
Material Adverse Effect on Trimark or to prevent or materially delay
consummation of the transactions contemplated by this Agreement or the
Arrangement. Neither Trimark nor any Trimark Material Subsidiary, nor
any Fund, nor their respective assets and properties,
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is subject to any outstanding judgment, order, writ, injunction or
decree that has had or is reasonably likely to have a Material Adverse
Effect on Trimark or that would prevent or materially delay
consummation of the transactions contemplated by this Agreement or the
Arrangement. Except as has been disclosed in writing previously by
Trimark to AMVESCAP in a form acceptable to AMVESCAP, Trimark and the
Trimark Material Subsidiaries are not to their knowledge subject to any
warranty, negligence, performance or other claims or disputes or
potential claims or disputes in respect of products or services
currently being delivered or previously delivered, and to their
knowledge there are no events or circumstances which could reasonably
be expected to give rise to any such claims or disputes or potential
claims or disputes, in each case which could reasonably be expected to
have a Material Adverse Effect on Trimark.
(j) Tax Matters. Except as has been disclosed in writing by Trimark to
AMVESCAP in a form acceptable to AMVESCAP:
(i) Trimark, each of the Trimark Material Subsidiaries and each
Fund have filed, or caused to be filed, all material Tax
Returns required to be filed by them (all of which returns
were correct and complete in all material respects) and have
paid, or caused to be paid, all material amounts of Taxes
shown to be due and payable thereon, and the most recently
published financial statements for Trimark and each Fund
contain an adequate provision in accordance with Canadian
generally accepted accounting principles for all material
amounts of Taxes payable in respect of each period covered by
such financial statements and all prior periods to the extent
such Taxes have not been paid, whether or not due and whether
or not shown as being due on any Tax Returns. Trimark, each of
the Trimark Material Subsidiaries and each Fund have made
adequate provision in accordance with Canadian generally
accepted accounting principles in their books and records for
any material amounts of Taxes accruing in respect of any
accounting period which has ended subsequent to the period
covered by such financial statements.
(ii) Neither Trimark nor any Trimark Material Subsidiary nor any
Fund has received any written notification that any issues
involving a material amount of Taxes have been raised (and are
currently pending) by Canada Customs and Revenue Agency, the
United States Internal Revenue Service or any other taxing
authority, including, without limitation, any sales tax
authority, in connection with any of the Tax Returns referred
to above and no waivers of statutes of limitations have been
given or requested with respect to Trimark or any Trimark
Material Subsidiary or any Fund. All liability of Trimark, the
Trimark Material Subsidiaries and the Funds for income taxes
has been
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assessed for all fiscal years up to and including the fiscal
year ended March 31, 1999 (with respect to Trimark and Trimark
Investment Management Inc.) and December 31, 1998 (with
respect to Trimark Trust and the Funds). To the knowledge of
Trimark, there are no proposed in writing (but unassessed)
additional Taxes involving a material amount of Taxes and none
has been asserted in writing. No Tax liens have been filed for
material amounts of Taxes other than for Taxes not yet due and
payable. Neither Trimark nor any of the Trimark Material
Subsidiaries nor any Fund is a party to any Tax sharing or
other similar agreement or arrangement of any nature with any
other person (other than Trimark or any of its subsidiaries)
pursuant to which Trimark or any of the Trimark Material
Subsidiaries or any Fund has or could have any material
liabilities in respect of Taxes, other than any liability
arising under an agreement providing for the sale or other
disposition of property by Trimark or any of the Trimark
Material Subsidiaries.
(iii) Each Fund which is a mutual fund within the meaning of the
Securities Act (a "MUTUAL FUND"), other than Trimark Global
High Yield Bond Pooled Fund currently meets the requirements
set out in the Tax Act to qualify as a "mutual fund trust",
and each such Mutual Fund has so qualified at all relevant
times since the date such Mutual Fund was established. At all
times during which the units of a Fund purported not to be or
were represented not to constitute "foreign property" under
the Tax Act, such Fund has restricted its investment in
"foreign property" so that its units have not at any time
during such period constituted foreign property for registered
retirement savings plans, registered retirement income funds,
registered pension funds and plans and deferred profit sharing
plans. Each of Trimark Canadian Fund, Trimark RSP Equity Fund,
Trimark Select Canadian Growth Fund, Trimark Enterprise Fund,
Trimark Canadian Resources Fund, Trimark Canadian Small
Companies Fund, Trimark Enterprise Small Cap Fund, Trimark
Income Growth Fund, Trimark Select Balanced Fund, Trimark
Interest Fund, Trimark Government Income Fund, Trimark
Canadian Bond Fund, Trimark Advantage Bond Fund, The Americas
RSP Fund, Trimark Discovery RSP Fund, Trimark Europlus RSP
Fund, Trimark Indo-Pacific RSP Fund, Trimark Select Growth RSP
Fund, Trimark US Companies RSP Fund, Trimark Global Balanced
RSP Fund, Trimark Global High Yield Bond RSP Fund, Trimark
International Companies RSP Fund and Trimark RSP Fund is a
"registered investment" under the Tax Act for registered
retirement savings plans, registered retirement income funds
and deferred profit sharing plans under the Tax Act and has
been a registered investment continuously for all periods when
the Fund held itself out to be a registered investment. For
each Fund, distributions or allocations, as
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the case may be, have been made in such amounts to holders of
units thereof or interests therein such that there is no
liability (contingent or otherwise), after taking into account
any refund of Tax to which the Fund is entitled, of the Fund
or any actual or deemed trustee thereof to pay Tax for any
period ending on or before the date hereof.
(iv) Trimark and, to the knowledge of Trimark after due enquiry,
any other trustees and former trustees of all the registered
plans (including registered retirement savings plans,
registered retirement income funds and registered education
savings plans) made available to investors by Trimark have
complied in all material respects with all of their
obligations under the Tax Act and pension and other laws with
respect to such plans, including withholding and remittance
obligations, "locking-in" obligations and the payment or
recognition in the financial statements of the applicable plan
of any liability or potential liability for taxes. All of
Trimark's registered plans are properly registered with
applicable tax authorities, up to date in all applicable
filings and comply in all material respects with all
requirements imposed under the Tax Act and other applicable
Law.
(v) "TAX" and "TAXES" means, with respect to any entity, all
income taxes (including any tax on or based upon net income,
gross income, income as specially defined, earnings, profits
or selected items of income, earnings or profits) and all
capital taxes, gross receipts taxes, environmental taxes,
sales taxes, use taxes, ad valorem taxes, value added taxes,
transfer taxes, franchise taxes, license taxes, withholding
taxes, payroll taxes, employment taxes, Canada or Quebec
Pension Plan premiums, excise, severance, social security
premiums, workers' compensation premiums, unemployment
insurance or compensation premiums, stamp taxes, occupation
taxes, premium taxes, property taxes, windfall profits taxes,
alternative or add-on minimum taxes, goods and services tax,
customs duties or other taxes of any kind whatsoever, together
with any interest and any penalties or additional amounts
imposed by any taxing authority (domestic or foreign) on such
entity, and any interest, penalties, additional taxes and
additions to tax imposed with respect to the foregoing.
(vi) For purposes of this Section (j), the term "MATERIAL AMOUNT OF
TAXES" shall mean an amount of Taxes that is material to
Trimark and its subsidiaries taken as a whole or material to a
Fund, as applicable.
(k) Pension and Employee Benefits.
(i) Trimark has disclosed in writing to AMVESCAP, in a form
acceptable to AMVESCAP, all material employee benefit, health,
welfare, supplemental unemployment benefit, bonus, pension,
profit sharing,
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deferred compensation, stock option, stock compensation, stock
purchase, retirement, hospitalization insurance, medical,
dental, legal, disability and similar plans or arrangements or
practices, whether written or oral, which are maintained by
Trimark or any Trimark Material Subsidiary (collectively
referred to as the "TRIMARK PLANS"). The provisions of the
United States Employee Retirement Income Security Act of 1974,
as amended and any regulations thereunder do not apply to any
of the Trimark Plans.
(ii) To Trimark's knowledge, no step has been taken, no event has
occurred and no condition or circumstance exists that has
resulted in or could reasonably be expected to result in any
Trimark Plan being ordered or required to be terminated or
wound up in whole or in part or having its registration under
applicable Laws refused or revoked, or being placed under the
administration of any trustee or receiver or regulatory
authority or being required to pay any material Taxes,
penalties or levies under applicable Laws. Except as has been
disclosed in writing by Trimark to AMVESCAP in a form
acceptable to AMVESCAP, to Trimark's knowledge, there are no
actions, suits, claims (other than routine claims for payment
of benefits in the ordinary course), trials, demands,
investigations, arbitrations or other proceedings which are
pending or threatened in respect of any of the Trimark Plans
or their assets which individually or in the aggregate would
have a Material Adverse Effect on Trimark.
(iii) Trimark has disclosed in writing to AMVESCAP, in a form
acceptable to AMVESCAP, true, correct and complete copies of
all of the Trimark Plans (or, in the case of any unwritten
Trimark Plan, a description thereof) together with financial
information and statements with respect to each Trimark Plan,
and current plan summaries, booklets and personnel manuals.
Trimark has made available to AMVESCAP a true and complete
copy of the most recent report filed with applicable
Governmental Entities with respect to each Trimark Plan in
respect of which such a report was required.
(iv) Except as has been disclosed in writing by Trimark to AMVESCAP
in a form acceptable to AMVESCAP, all of the Trimark Plans are
in compliance in all material respects with all applicable
Laws and their terms. Neither Trimark nor any of its
subsidiaries have any payment obligations under any Trimark
Plans other than to make contributions as they become due in
the ordinary course, and such obligations have been fulfilled
to the date hereof and to make any payments under Trimark's
short term disability plan.
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(v) Except as has been disclosed in writing by Trimark to AMVESCAP
in a form acceptable to AMVESCAP, the entry into or
performance by Trimark of this Agreement and the completion of
the Arrangement and the transactions contemplated thereby will
not result in any payment (including severance, unemployment
compensation, golden parachute, bonus or otherwise) becoming
due to any director or employee of Trimark or any Trimark
Material Subsidiary or increase any benefits otherwise payable
under any Trimark Plan or result in the acceleration of time
of payment or vesting of any such benefits except to
accelerate the vesting of ownership of unvested Trimark Common
Shares under the Employee Profit Sharing Plan.
(l) Reports. Trimark has filed with each of the Canadian Securities
Regulatory Authorities true and complete copies of all forms, reports,
schedules, statements and other documents required to be filed by it
(such forms, reports, schedules, statements and other documents,
including any financial statements or other documents, including any
schedules included therein, are referred to as the "TRIMARK
DOCUMENTS"). The Trimark Documents at the time filed (i) did not
contain any misrepresentation (as defined in the Securities Act) and
(ii) complied in all material respects with the requirements of
applicable securities Laws. Trimark has not filed any confidential
material change report with the OSC or any other securities authority
or regulator or any stock exchange or other self-regulatory authority
which at the date hereof remains confidential. Trimark is a reporting
issuer in, and is not in default in any material respect of any
requirement of the securities Laws of, each province and territory in
Canada.
(m) Fund Reports. Each of the Mutual Funds (except Trimark Global High
Yield Bond Pooled Fund) has filed with each of the Canadian Securities
Regulatory Authorities true and complete copies of all forms, reports,
schedules, statements and other documents required to be filed by it
(such forms, reports, schedules, statements and other documents,
including any financial statements or other documents, including any
schedules included therein, are referred to as the "FUND DOCUMENTS").
The Fund Documents at the time filed (i) did not contain any
misrepresentation (as defined in the Securities Act) and (ii) complied
in all material respects with the requirements of applicable securities
Laws including all requirements imposed by discretionary orders granted
by any Canadian Security Regulatory Authority. None of the Mutual Funds
has filed any confidential material change report with the OSC or any
other securities authority or regulator or any stock exchange or other
self-regulatory authority which at the date hereof remains
confidential. The securities issued by each Mutual Fund are duly
qualified for distribution to the public in each of the provinces and
territories of Canada under applicable securities Laws. Each Mutual
Fund is a reporting issuer in, and is not in
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default in any material respect of any requirement of the securities
Laws of, each province and territory of Canada.
(n) Compliance with Laws. Except as has been disclosed in writing by
Trimark to AMVESCAP in a form acceptable to AMVESCAP or Publicly
Disclosed by Trimark, Trimark, the Trimark Material Subsidiaries and
the Funds have complied with and are not in violation of any applicable
Laws, orders, judgments and decrees other than non-compliance or
violations which would not, individually or in the aggregate, have a
Material Adverse Effect on Trimark. Without limiting the generality of
the foregoing, all securities of Trimark and of each of the Funds
(including, all options, rights or other convertible or exchangeable
securities) have been issued in compliance, in all material respects,
with all applicable securities Laws and all securities to be issued
upon exercise of any such options, rights and other convertible or
exchangeable securities will be issued in compliance with all
applicable securities Laws, or in accordance with the terms of the
exemptive relief granted to Trimark or the Funds by Canadian Securities
Regulatory Authorities.
(o) Restrictions on Business Activities. Except as has been disclosed in
writing by Trimark to AMVESCAP in a form acceptable to AMVESCAP or
Publicly Disclosed by Trimark, there is no agreement, judgment,
injunction, order or decree binding upon Trimark, any subsidiary or any
Fund that has or could reasonably be expected to have the effect of
prohibiting, restricting or materially impairing any business activity
of Trimark, any subsidiary or affiliate or any Fund, any acquisition of
property by Trimark or any subsidiary or affiliate or the conduct of
business by Trimark, any subsidiary or affiliate or any Fund as
currently conducted (including following the Arrangement) other than
such agreements, judgments, injunctions, orders or decrees which would
not, individually or in the aggregate, have a Material Adverse Effect
on Trimark or AMVESCAP.
(p) Property. Except as has been disclosed in writing by Trimark to
AMVESCAP in a form acceptable to AMVESCAP, Trimark and each Trimark
Material Subsidiary have good and sufficient title to the real property
interests, including fee simple estate of and in real property, leases,
easements, rights of way, permits or licences from land owners or
authorities permitting the use of land by Trimark or such Trimark
Material Subsidiary, necessary to permit the operation of its
businesses as presently owned and conducted except for such failure of
title that would individually or in the aggregate not have a Material
Adverse Effect on Trimark. Except as has been disclosed in writing by
Trimark to AMVESCAP in a form acceptable to AMVESCAP, Trimark is not a
party to, or under any agreement to become a party to, any lease with
respect to real property which if terminated could reasonably be
expected to have a Material Adverse Effect on Trimark.
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(q) Licences, Etc. Except as has been disclosed in writing by Trimark to
AMVESCAP in a form acceptable to AMVESCAP, Trimark and each Trimark
Material Subsidiary and each Fund owns, possesses, or has obtained and
is in compliance with, all licences, permits, certificates, orders,
grants and other authorizations of or from any Governmental Entity
necessary to conduct its businesses as now conducted except for such
failure that would individually or in the aggregate not have a Material
Adverse Effect on Trimark. Trimark Investment Management Inc. is
registered as a limited market dealer and an investment
counsel/portfolio manager in the Province of Ontario and a mutual fund
dealer in the provinces of Ontario, Nova Scotia, Xxxxxx Xxxxxx Island,
Newfoundland, New Brunswick, Quebec, Alberta, Saskatchewan and British
Columbia, a broker/dealer in the Province of Manitoba and a broker in
Nunavut, Yukon and the Northwest Territories. Trimark Trust is licensed
under the trust legislation of each of the provinces of Canada. Trimark
Trust's authorized asset to capital ratio and borrowing ratio is less
than or equal to 20:1, calculated in accordance with the provisions of
relevant trust legislation.
(r) Registration Rights. No holder of securities issued by Trimark has any
right to compel Trimark to register or otherwise qualify such
securities for public sale in Canada or the United States.
(s) Intellectual Property. Trimark has disclosed in writing in a form
acceptable to AMVESCAP a complete and accurate list of all registered
trade-marks, service marks, copyrights, industrial designs, patents,
design patents and all applications therefor of Trimark, its
subsidiaries or any of the Funds ("TRIMARK IP"). Except as disclosed in
writing in a form acceptable to AMVESCAP, none of Trimark nor its
subsidiaries nor any of the Funds has received written notice or is
aware that its use of Trimark IP infringes upon or breaches the
industrial or intellectual property rights of any other Person in any
material respect. Except as disclosed in writing in a form acceptable
to AMVESCAP, none of Trimark nor any of its subsidiaries nor any of the
Funds has commenced legal proceedings relating to an infringement by
any Person of the Trimark IP. Trimark and each of the Funds has or has
rights to use all of the intellectual property necessary to conducts
its business as currently conducted. Trimark or one of Trimark's
Material Subsidiaries has valid licences from third parties (and no
such licence may be terminated at the discretion of a third party upon
a change of control of Trimark or any of its Material Subsidiaries) in
respect of or is the sole owner of all computer software, computer
systems, databases, platforms, programs, applications, telephone and/or
communication systems, designs and any related good will ("COMPUTER
SYSTEMS") necessary to conduct its business as currently carried on.
Except as has been disclosed in writing by Trimark to AMVESCAP in a
form acceptable to AMVESCAP, no current or former employee, independent
contractor or consultant of Trimark or any Trimark Material Subsidiary
has
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any rights in respect of or ownership interests in any of the Computer
Systems other than those which are validly licensed to Trimark.
(t) Non-Arm's Length Transactions. Except as has been set forth in writing
by Trimark to AMVESCAP in a form acceptable to AMVESCAP, there are no
material contracts, commitments, agreements, arrangements or other
transactions between Trimark or any of its subsidiaries or any Fund, on
the one hand, and any (i) officer or director of Trimark or any of its
subsidiaries, (ii) record or beneficial owner of five percent or more
of the voting securities of Trimark or (iii) affiliate of any such
officer, director or beneficial owner, on the other hand.
(u) Insurance. Trimark has provided or made available to AMVESCAP true,
correct and complete copies of all material policies of insurance to
which any of Trimark and its subsidiaries are a party or are a
beneficiary or named insured. Trimark and its subsidiaries maintain
insurance coverage with reputable insurers in such amounts and covering
such risks as are in accordance with normal industry practice for
companies engaged in businesses similar to that of Trimark and its
subsidiaries (taking into account the cost and availability of such
insurance).
(v) Related Party Investments. To Trimark's knowledge after due enquiry, no
Person related to Trimark (as that term is interpreted for purposes of
the Tax Act) with Trimark or any subsidiary of Trimark, beneficially
holds, directly or indirectly, any material number of units of any of
the Funds or held any material number of such units as at December 31,
1999.
(w) Material Facts. Trimark has attempted in good faith to deliver all
documents under its control and the control of the Trimark Material
Subsidiaries or the Funds and their respective advisors that have been
requested by AMVESCAP or its advisors, and has not withheld any
material fact in responding to the inquiries made to it in writing by
AMVESCAP or its advisors in connection with the transactions
contemplated by this Agreement.
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SCHEDULE H
AMVESCAP REPRESENTATIONS AND WARRANTIES
(a) Organization. Each of AMVESCAP and the AMVESCAP Material Subsidiaries
has been duly incorporated or formed under all applicable Laws, is
validly subsisting and has full corporate or legal power and authority
to own its properties and conduct its businesses as currently owned and
conducted. All of the outstanding shares and other ownership interests
of the AMVESCAP Material Subsidiaries which are held directly or
indirectly by AMVESCAP are validly issued and fully paid and all such
shares and other ownership interests are owned directly or indirectly
by AMVESCAP, subject to certain liens, claims and encumbrances. Except
as Publicly Disclosed by AMVESCAP or as has been set forth in writing
by AMVESCAP to Trimark in a form acceptable to Trimark, there are no
outstanding options, rights, entitlements, understandings or
commitments (contingent or otherwise) regarding the right to acquire
any such shares or other ownership interests in any of the AMVESCAP
Material Subsidiaries. AMVESCAP has disclosed in writing to Trimark in
a form acceptable to Trimark the names and jurisdictions of
incorporation of each of the AMVESCAP Material Subsidiaries.
(b) Capitalization. The authorized capital of AMVESCAP consists of
850,800,000 AMVESCAP Ordinary Shares, 25 xxxxx par value, Shares, of
which 676,276,000 AMVESCAP Ordinary Shares were issued and outstanding
at March 31, 2000. Except for employee stock options pursuant to
employee compensation plans, there are no options, warrants, conversion
privileges or other rights, agreements, arrangements or commitments
(contingent or otherwise) obligating AMVESCAP to issue or sell any
shares or securities or obligations of any kind convertible into or
exchangeable for any shares. All outstanding AMVESCAP Ordinary Shares
have been duly authorized and are validly issued and outstanding as
fully paid shares. There are no outstanding bonds, debentures or other
evidences of indebtedness of AMVESCAP having the right to vote (or that
are convertible for or exercisable into securities having the right to
vote) with the holders of the AMVESCAP Ordinary Shares on any matter.
Other than employee stock option plans, there are no outstanding
contractual obligations of AMVESCAP to repurchase, redeem or otherwise
acquire any of its outstanding Ordinary Shares.
(c) Authority and No Violation.
(i) AMVESCAP has the requisite corporate power and authority to
enter into this Agreement, the Support Agreement and the
Voting and Exchange Trust Agreement and (subject to the
passing of the AMVESCAP Resolution and obtaining the
Regulatory Approvals) to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement, the
Support Agreement and the Voting
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and Exchange Trust Agreement by AMVESCAP and (subject to the
passing of the AMVESCAP Resolution and obtaining the
Regulatory Approvals) the consummation by AMVESCAP of the
transactions contemplated by this Agreement, the Support
Agreement and the Voting and Exchange Trust Agreement have
been duly authorized by its respective Board of Directors and
other than passing the AMVESCAP Resolution and obtaining the
Regulatory Approvals, no other corporate proceedings on its
part are necessary to authorize this Agreement, the Support
Agreement and the Voting and Exchange Trust Agreement or the
transactions contemplated hereby or thereby, other than:
(A) with respect to the AMVESCAP Circular and other
matters relating solely thereto, the approval of the
Board of Directors of AMVESCAP; and
(B) the approval of the AMVESCAP Shareholders.
(ii) This Agreement has been duly executed and delivered by
AMVESCAP and (subject to the passing of the AMVESCAP
Resolution and obtaining the Regulatory Approvals) constitutes
its legal, valid and binding obligation, enforceable against
it in accordance with its terms, subject to bankruptcy,
insolvency and other applicable Laws affecting creditors'
rights generally, and to general principles of equity. Each of
the Support Agreement and the Voting and Exchange Trust
Agreement will be duly executed and delivered by AMVESCAP and
its subsidiaries who will be a party thereto and, (subject to
the passing of the AMVESCAP Resolution and obtaining the
Regulatory Approvals) when so executed and delivered, will
constitute their legal, valid and binding obligation,
enforceable against them in accordance with its terms, subject
to bankruptcy, insolvency and other applicable Laws affecting
creditors' rights generally, and to general principles of
equity.
(iii) The Board of Directors of AMVESCAP has (A) determined as of
the date hereof that the Arrangement is in the best interests
of AMVESCAP, and (B) determined as of the date hereof to
recommend that the AMVESCAP Shareholders vote in favour of the
matters in connection with the Arrangement to be considered at
the AMVESCAP Meeting. AMVESCAP is not subject to a shareholder
rights plan or "poison pill" or similar plan.
(iv) The approval of this Agreement, the Support Agreement and the
Voting and Exchange Trust Agreement, the execution and
delivery by AMVESCAP and each of its subsidiaries who will be
a party to this
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Agreement, the Support Agreement and the Voting and Exchange
Trust Agreement and the performance by them of their
obligations hereunder and thereunder and the completion of the
Arrangement and the transactions contemplated thereby, will
not (subject to the passing of the AMVESCAP Resolution and
obtaining the Regulatory Approvals):
(A) result in a violation or breach of, require any
consent to be obtained under or give rise to any
termination, purchase or sale rights or payment
obligation under any provision of:
(I) its certificate of incorporation, articles,
by-laws or other charter documents;
(II) any Laws, judgment or decree (subject to
obtaining the Regulatory Approvals relating
to AMVESCAP), except to the extent that the
violation or breach of, or failure to obtain
any consent under, any Laws, judgment or
decree would not, individually or in the
aggregate, have a Material Adverse Effect on
AMVESCAP; or
(III) except as would not, individually or in the
aggregate, have a Material Adverse Effect on
AMVESCAP, any contract, agreement, license,
franchise or permit to which it is party or
by which it or any AMVESCAP Material
Subsidiary is bound or subject or is the
beneficiary;
(B) give rise to any right of termination or acceleration
of indebtedness of AMVESCAP or any AMVESCAP Material
Subsidiary, or cause any such indebtedness to come
due before its stated maturity or cause any available
credit of AMVESCAP or any AMVESCAP Material
Subsidiary to cease to be available, other than as
would not, individually or in the aggregate, have a
Material Adverse Effect on AMVESCAP; or
(C) except as would not, individually or in the
aggregate, have a Material Adverse Effect on
AMVESCAP, result in the imposition of any
encumbrance, charge or lien upon any of its assets or
the assets of any AMVESCAP Material Subsidiary, or
restrict, hinder, impair or limit the ability of
AMVESCAP or any AMVESCAP Material Subsidiary to carry
on its business as and where it is now being carried
on.
No consent, approval, order or authorization of, or
declaration or filing with, any Governmental Entity is
required to be obtained by AMVESCAP in connection with the
execution and delivery of this
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Agreement, the Support Agreement and the Voting and Exchange
Trust Agreement or the consummation by any of AMVESCAP of the
transactions contemplated hereby or thereby other than (A) the
Regulatory Approvals relating to AMVESCAP, (B) any filings
required in connection with the creation and issue of the
AMVESCAP Special Voting Share, (C) the passing of the AMVESCAP
Resolution by the AMVESCAP Shareholders, and (D) any other
consents, approvals, orders, authorizations, declarations or
filings of or with a Governmental Entity which have been set
forth in writing by AMVESCAP to Trimark in a form acceptable
to Trimark or which, if not obtained, would not, individually
or in the aggregate, have a Material Adverse Effect on
AMVESCAP.
(d) Absence of Certain Changes or Events. Except as Publicly Disclosed by
AMVESCAP, since December 31, 1999 through to the date hereof each of
the AMVESCAP and each AMVESCAP Material Subsidiary has conducted its
business only in the ordinary and regular course of business consistent
with past practice and there has not occurred:
(i) a Material Adverse Change with respect to AMVESCAP;
(ii) any damage, destruction or loss not fully covered by insurance
that could reasonably be expected to have a Material Adverse
Effect on AMVESCAP;
(iii) any entering into, amendment of, relinquishment, termination
or non-renewal by it of any material contract, agreement,
license, franchise, lease transaction, commitment or other
right or obligation that could reasonably be expected to have
a Material Adverse Effect on AMVESCAP;
(iv) any resolution to approve a split, consolidation or
reclassification of the AMVESCAP Ordinary Shares; or
(v) any material change in its accounting methods, principles or
practices.
(e) Financial Statements. The audited consolidated financial statements for
AMVESCAP as at and for each of the 12-month periods ended December 31,
1999, 1998 and 1997 have been prepared in accordance with United
Kingdom generally accepted accounting principles and practices
consistently applied and all applicable United Kingdom Financial
Reporting Standards and Statements of Standard Accounting Practice and
the United Kingdom Companies Act 1985 (as amended); such financial
statements give a true and fair view of the consolidated financial
position and results of operations of AMVESCAP and its subsidiaries as
of the respective dates thereof and for the respective periods covered
thereby. The unaudited consolidated financial
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statements of AMVESCAP for the 3 month period ended March 31, 2000
fairly present in all material respects the trading results and profits
before taxation of AMVESCAP and its subsidiaries for such period and
save for the fact that they are unaudited (and subject to the absence
of notes and the usual year end adjustments), have been prepared in
accordance with United Kingdom generally accepted accounting principles
and practices consistently applied and all applicable United Kingdom
Financial Reporting Standards and Statements of Standard Accounting
Practice (to the extent normally complied with in respect of such
interim statements by similar UK listed companies).
(f) Reports. AMVESCAP has filed with applicable United Kingdom authorities
true and complete copies of all material forms, reports, schedules,
statements and other documents required to be filed by it since January
1, 2000, and such documents, at the time filed, (i) did not contain any
misrepresentation (as defined in the Securities Act) and (ii) complied
in all material respects with the requirements of applicable securities
Laws.
(g) Compliance with Laws. Except as has been set forth in writing by
AMVESCAP to Trimark in a form acceptable to Trimark or Publicly
Disclosed by AMVESCAP, AMVESCAP and the AMVESCAP Material Subsidiaries
have complied with and are not in violation of any applicable Laws,
orders, judgments and decrees other than non-compliance or violations
which would not, individually or in the aggregate, have a Material
Adverse Effect on AMVESCAP.
(h) Litigation, Etc. Except as has been set forth in writing by AMVESCAP to
Trimark in a form acceptable to Trimark or Publicly Disclosed by
AMVESCAP, there is no claim, action, proceeding or investigation
pending or, to the knowledge of AMVESCAP, threatened against AMVESCAP
or any AMVESCAP Material Subsidiary before any court or Governmental
Entity that would reasonably be expected to have a Material Adverse
Effect on AMVESCAP or to prevent or materially delay consummation of
the transactions contemplated by this Agreement or the Arrangement.
Neither AMVESCAP nor any AMVESCAP Material Subsidiary, nor their
respective assets and properties, is subject to any outstanding
judgment, order, writ, injunction or decree that has had or is
reasonably likely to have a Material Adverse Effect on AMVESCAP or that
would prevent or materially delay consummation of the transactions
contemplated by this Agreement or the Arrangement.
(i) AMVESCAP Ordinary Shares. Subject to compliance with the requirements
of the LSE and UKLA, and the passing of the AMVESCAP Resolution, the
AMVESCAP Ordinary Shares to be issued at the Effective Date and upon
the exchange, conversion or exercise from time to time of the
Exchangeable
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Shares, and the Replacement Options, respectively, will, in all cases,
be duly and validly issued by AMVESCAP on their respective dates of
issue as fully paid shares and approved for listing (subject to
allotment) by the UKLA.
(j) Exchangeable Shares. Subject to Exchangeco complying with all
applicable Laws, including the rules and regulations of the Toronto
Stock Exchange, the Exchangeable Shares to be issued at the Effective
Date and in accordance with the terms of the AMVESCAP Equity
Subordinated Debentures will, in all cases, be duly and validly issued
by Exchangeco on their respective dates of issue as fully paid and
non-assessable shares, and, together with the AMVESCAP Equity
Subordinated Debentures, will be conditionally approved for listing by
the Toronto Stock Exchange.
(k) Financing. AMVESCAP has made adequate arrangements to ensure that
sufficient cash funds are and will at the Effective Time be available
to pay to Trimark Securityholders all such cash amounts as will be
payable at the Effective Time pursuant to the Arrangement.
