PLAN OF ARRANGEMENT UNDER SECTION 182 OF THE BUSINESS CORPORATIONS ACT (ONTARIO)
EXHIBIT
99.13
PLAN
OF ARRANGEMENT
UNDER
SECTION 182
OF
THE BUSINESS
CORPORATIONS ACT (ONTARIO)
Article 1
INTERPRETATION
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:
"Acquisition
Agreement"
means
the acquisition agreement dated February 9, 2007, between Purchaser and Four
Seasons and any amendment thereto made in accordance with such
agreement;
"affiliate"
has the
meaning ascribed thereto in the Securities
Act
(Ontario) and, for purposes of this Plan of Arrangement, the Foundation shall
not be considered an affiliate of FS Washington or of the
Purchaser;
"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 8.3 of the Acquisition
Agreement or Article 6 hereof or made at the direction of the Court in the
Final Order;
"Arrangement
Resolution"
means
the special resolution of the shareholders of Four Seasons substantially
in the
form and content of Schedule B to the Acquisition
Agreement;
"Articles
of Arrangement"
means
the articles of arrangement of Four Seasons in respect of the Arrangement,
to be
sent to the Director after the Final Order is made, subject to the terms
of the
Acquisition Agreement;
"business
day"
means
any day, other than a Saturday, a Sunday and a statutory holiday in Toronto,
Canada, Seattle, Washington, United States of America, or New York,
New York, United States of America;
"Certificate"
means
the certificate of arrangement giving effect to the Arrangement, issued pursuant
to Subsection 183(2) of the OBCA after the Articles of Arrangement have
been filed;
"Court"
means
the Ontario Superior Court of Justice;
"Depositary"
means
Computershare Investor Services Inc. or such other person as is appointed
to act as depositary for the purposes of the Arrangement by Four Seasons,
acting
reasonably;
"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 Article
4;
"Dissenting
Shareholder"
means a
holder of Limited Voting Shares who properly dissents in respect of the
Arrangement in strict compliance with the procedures for exercising Dissent
Rights and does not withdraw such dissent prior to the Effective
Time;
"Effective
Date"
means
the date shown on the Certificate, provided that such date occurs on or prior
to
the Outside Date;
“Effective
Time”
means
the time on the Effective Date as specified in writing by Four
Seasons;
“Exchange
Rate”
means
the Bank of Canada's published rate of exchange of Canadian dollars for
United States dollars at noon on the day prior to the Effective
Date;
"Final
Order"
means
the final order of the Court approving the Arrangement as such order may
be
amended or varied by the Court at any time prior to the Effective Date or,
if
appealed, then, unless such appeal is withdrawn or denied, as affirmed or
as
amended on appeal;
“Foundation”
means
the Bill and Xxxxxxx Xxxxx Foundation Trust;
“Four
Seasons”
means
Four Seasons Hotels Inc., a corporation existing under the laws of Ontario,
Canada and any corporation formed on the amalgamation of Four Seasons with
one
or more of its wholly-owned subsidiaries;
"Four
Seasons Circular"
means
the notice of the Four Seasons Meeting and accompanying Four Seasons management
information circular, including all schedules, appendices and exhibits thereto,
to be sent to shareholders of Four Seasons in connection with the Four Seasons
Meeting, as amended, supplemented or otherwise modified;
“Four
Seasons Convertible Note Indenture”
means
the indenture dated as of June 18, 2004 between Four Seasons and The Bank
of
Nova Scotia Trust Company of New York, as supplemented by the first supplemental
indenture dated as of June 18, 2004 between those same parties;
“Four
Seasons Convertible Notes”
means
the U.S.$250,000,000 aggregate principal amount of 1.875% convertible senior
notes of Four Seasons maturing July 30, 2024 issued pursuant to the Four
Seasons
Convertible Note Indenture;
"Four
Seasons Meeting"
means
the special meeting of holders of Limited Voting Shares, including any
adjournment or postponement thereof, to be called and held in accordance
with
the Interim Order to consider the Arrangement;
"Four
Seasons Option"
means
an option to purchase Limited Voting Shares granted under the Four Seasons
Stock
Option Plan;
"Four
Seasons Stock Option Plan"
means
the Four Seasons Restated Director, Executive and Employee Stock Option Plan,
as
amended through February 26, 2004;
"FSHL"
means
Four Seasons Hotels Limited, a corporation existing under the laws of Ontario,
Canada, a subsidiary of Four Seasons;
“FS
Washington”
means
FS Washington Acquisition Corp, a corporation organized under the laws of
the
state of Washington;
"Governmental
Entity"
means
any (a) multinational, federal, provincial, state, regional, municipal,
local or other government, governmental or public department, ministry, central
bank, court, tribunal, arbitral body, commission, board, bureau or agency,
domestic or foreign, (b) any subdivision, agent or authority of any of the
foregoing, or (c) any quasi-governmental or private body, including any
tribunal, commission, commissioner, regulatory agency or self-regulatory
organization, exercising any regulatory, expropriation or taxing authority
under
or for the account of any of the foregoing;
"holders"
means,
(a) when used with reference to the Limited Voting Shares, the holders of
Limited Voting Shares shown from time to time in the register maintained
by or
on behalf of Four Seasons in respect of the Limited Voting Shares and
(b) when used with reference to the Four Seasons Options, the holders of
Four Seasons Options shown from time to time in the register maintained by
or on
behalf of Four Seasons in respect of the Four Seasons Options;
"Interim
Order"
means
the interim order of the Court, as the same may be amended in respect of
the
Arrangement, as contemplated by Section 2.2 of the Acquisition
Agreement;
"Kingdom"
means
Kingdom Investments I (TSF) Sarl, a company organized under the laws of
Luxembourg;
"Letter
of Transmittal"
means
the letter of transmittal to be sent by Four Seasons to holders of Limited
Voting Shares for use in connection with the Arrangement;
"Liens"
means
any hypothecations, mortgages, liens, charges, security interests, pledges,
claims, encumbrances and adverse rights or claims;
"Limited
Voting Shares"
means
the limited voting shares in the capital of Four Seasons;
"Meeting
Date"
means
the date of the Four Seasons Meeting;
"OBCA"
means
the
Business
Corporations Act
(Ontario) and the regulations made thereunder, as now in effect and as they
may
be promulgated or amended from time to time;
"Outside
Date"
means
June 30, 2007, subject to the right of any Party to postpone the Outside
Date
for up to an additional 90 days (in 30-day increments) if the
Regulatory Approvals have not been obtained and have not been denied by a
non-appealable decision of a Governmental Entity, by giving written notice
to
the other Party to such effect no later than 5:00 p.m. (Eastern time) on
the date that is 15 days prior to the original Outside Date (and any
subsequent Outside Date), or such later date as may be agreed to in writing
by
the Parties; provided that notwithstanding the foregoing, a Party shall not
be
permitted to postpone the Outside Date if the failure to obtain a Regulatory
Approval is materially the result of such Party's failure to cooperate in
accordance with Section 5.5(a) of the Acquisition Agreement in obtaining
such
Regulatory Approval;
"Parties"
means
the Purchaser and Four Seasons, and "Party"
means
either of them;
"person"
includes an individual, limited or general partnership, limited liability
company, limited liability partnership, trust, joint venture, association,
body
corporate, unincorporated organization, trustee, executor, administrator,
legal
representative, government (including any Governmental Entity) or any other
entity, whether or not having legal status;
"Purchaser"
means
FS
Acquisition Corp.,
a
company existing under the laws of British
Columbia,
Canada
and any successor corporation thereto;
"Purchaser
Class A Non-Voting Shares"
means
the first class of Purchaser Non-Voting Shares;
"Purchaser
Class B Non-Voting Shares"
means
the second class of Purchaser Non-Voting Shares;
"Purchaser
Class C Non-Voting Shares"
means
the third class of Purchaser Non-Voting Shares;
"Purchaser
Class D Non-Voting Shares"
means
the fourth class of Purchaser Non-Voting Shares;
"Purchaser
Non-Voting Shares"
means
the four classes of non-voting shares in the capital of the
Purchaser;
"Sale
of Control Agreement"
means
the agreement entitled Long-Term Incentive Plan made January 11, 1990 among
Four
Seasons, FSHL and Sharp ;
"Share
Acquisition Agreement"
means
the agreement dated February 9, 2007 between Foundation and Four Seasons
and any
amendment thereto made in accordance with such agreement;
"Sharp"
means
Xx. Xxxxxxx Xxxxx;
"Tax
Act"
means
the Income
Tax Act
(Canada)
and the regulations made thereunder, as now in effect and as they may be
promulgated or amended from time to time;
"Triples"
means
Triples Holdings Limited, a corporation existing under the laws of Ontario,
Canada; and
"Variable
Multiple Voting Shares"
means
the variable multiple voting shares in the capital of Four Seasons.
1.2
Sections and Headings
The
division of this Plan of Arrangement into articles and sections and the
insertion of headings are for convenience of reference only and shall not
affect
the construction or the interpretation of this Plan of Arrangement. Unless
otherwise indicated, any reference in this Plan of Arrangement to articles
or
sections refers to the specified articles or sections of this Plan of
Arrangement.
1.3
Number, Gender and Persons
In
this
Plan of Arrangement, unless the context otherwise requires, words importing
the
singular number include the plural and vice
versa
and
words importing any gender include all genders.
1.4
Date of Any Action
In
the
event that any date on which any action is required to be taken under this
Plan
of Arrangement is not a business day, such action shall be required to be
taken
on the next succeeding day which is a business day.
1.5
Time
Time
shall be of the essence in this Plan of Arrangement.
Article 2
BINDING
EFFECT
2.1
Binding Effect
This
Plan
of Arrangement, within the meaning of Section 182 of the OBCA, will become
effective on, and be binding on and after, the Effective Date on (i) Four
Seasons, (ii) Purchaser, (iii) all holders and all beneficial owners
of Limited Voting Shares, (iv) all holders of Four Seasons Options, and
(v) all holders and beneficial owners of Variable Multiple Voting
Shares.
Article 3
ARRANGEMENT
3.1
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)
|
at
the Effective Time, Purchaser shall be deemed, subject to having
obtained
any necessary regulatory relief, to have entered into an agreement
with
Four Seasons pursuant to which Purchaser shall at such time transfer
or
cause to be transferred to Four Seasons those Four Seasons Convertible
Notes then owned by it or any of its subsidiaries and acquired
pursuant to
an offer made to all holders of Four Seasons Convertible Notes
at the same
price per Four Seasons Convertible Note as Purchaser or any of
its
subsidiaries paid for the Four Seasons Convertible Notes (the "Purchase
Amount"), and the Four Seasons Convertible Notes that are thereby
transferred to Four Seasons shall be immediately thereafter cancelled,
in
each case without further act or formality. Four Seasons may, in
full and
absolute satisfaction of the Purchase Amount, pay the Purchase
Amount in
cash or through the issuance of a demand promissory
note;
|
|
(b)
|
five
minutes following the step contemplated in Section 3.1(a), pursuant
to and
in full satisfaction of the Share Acquisition Agreement, the Limited
Voting Shares held by Foundation immediately before the Effective
Time
will be transferred (free and clear of Liens) to Four Seasons without
any
further act or formality in exchange for US$82.00 in cash per Limited
Voting Share and the Foundation shall cease to be a holder of such
Limited
Voting Shares and such shares shall be
cancelled;
|
|
(c)
|
five
minutes following the step contemplated in Section 3.1(b), the
voting
rights attached to the Variable Multiple Voting Shares shall be
reduced to
one vote per share but such shares shall remain designated as Variable
Multiple Voting Shares;
|
|
(d)
|
five
minutes following the step contemplated in Section 3.1(c), all
of the Four
Seasons Options granted and outstanding immediately prior to the
Effective
Time shall, without any further action on behalf of any holder
of Four
Seasons Options, be transferred by each holder thereof to Four
Seasons
without any further act or formality in exchange for a cash amount
equal
to the excess, if any, of (i) the product of the number of Limited
Voting Shares underlying the Four Seasons Options held by such
holder and
US$82.00 over (ii) the sum of the exercise prices for each Limited
Voting Share underlying the Four Seasons Options held by such holder
(converted at the Exchange Rate);
|
|
(e)
|
with
respect to each Four Seasons Option, the holder of such Four Seasons
Option shall cease to be the holder of such Four Seasons Option
and such
holder's name shall be removed from the register of Four Seasons
Options
as the holder of such Four Seasons Options concurrently with the
step
contemplated in Section 3.1(d);
|
|
(f)
|
the
Four Seasons Stock Option Plan shall be cancelled concurrently
with the
completion of the step contemplated in Section
3.1(d);
|
|
(g)
|
five
minutes following the step contemplated in Section 3.1(d), the
Limited
Voting Shares held by Dissenting Shareholders shall be deemed to
have been
transferred without any further act or formality to the Purchaser
(free
and clear of any Liens) and such holders shall cease to have any
rights as
shareholders other than the right to be paid the fair value of
their
Limited Voting Shares as set out in
Section 4.1;
|
|
(h)
|
concurrently
with the step contemplated in Section 3.1(g), all Limited Voting
Shares
outstanding immediately prior to the Effective Time other
than Limited Voting Shares held by (i) Dissenting Shareholders; or
(ii) Kingdom and FS Washington, shall be transferred without any
further act or formality by the holder thereof to Purchaser (free
and
clear of any Liens), for US$82.00 in cash per Limited Voting
Share;
|
|
(i)
|
with
respect to each Limited Voting Share transferred to Purchaser pursuant
to
Sections 3.1(g) or 3.1(h) and concurrently with the step
contemplated in Section 3.1(g):
|
|
(i)
|
the
holder of each such Limited Voting Share shall cease to be the
holder of
such Limited Voting Share and such holder's name shall be removed
as the
holder of such Limited Voting Shares from the register of Limited
Voting
Shares; and
|
|
(ii)
|
Purchaser
shall be deemed to be the transferee of such Limited Voting Shares
(free
and clear of any Liens) and shall be entered in the register of
Limited
Voting Shares as the holder
thereof;
|
|
(j)
|
concurrently
with the step contemplated in Section 3.1(g), all outstanding Limited
Voting Shares held by Kingdom and FS Washington shall be transferred
without any further act or formality by the holder thereof to Purchaser
(free and clear of any Liens) in exchange for Purchaser Class A
Non-Voting
Shares (in the case of Kingdom) and Purchaser Class B Non-Voting
Shares
(in the case of FS Washington) on a one-for-one
basis;
|
|
(k)
|
with
respect to each Limited Voting Share transferred to Purchaser
pursuant to Section 3.1(j) and concurrently with the step
contemplated in Section 3.1(g):
|
|
(i)
|
the
holder of each such Limited Voting Share shall cease to be the
holder of
such Limited Voting Share and such holder's name shall be removed
as the
holder of such Limited Voting Shares from the register of Limited
Voting
Shares; and
|
|
(ii)
|
Purchaser
shall be deemed to be the transferee of such Limited Voting Shares
(free
and clear of any Liens) and shall be entered in the register of
Limited
Voting Shares as the holder
thereof;
|
|
(l)
|
concurrently
with the step contemplated in Section
3.1(g),
|
|
(i)
|
a
number of the outstanding Variable Multiple Voting Shares owned
by Triples
shall be transferred without any further act or formality by Triples
to
Purchaser (free and clear of any Liens) on a one-for-one basis
in exchange
for a number of Class C Non-Voting Shares of Purchaser equal to
the
difference between (1) 1/19 multiplied by the sum of 900 plus the
total
number Class A Non-Voting Shares and Class B Non-Voting Shares
of
Purchaser issued on or prior to the Effective Date, and (2) 100;
and
|
|
(ii)
|
the
remaining number of the outstanding Variable Multiple Voting Shares
owned
by Triples shall be transferred without any further act or formality
by
Triples to Purchaser (free and clear of any Liens) in exchange
for an
equal number of Purchaser Class D Non-Voting Shares;
and
|
|
(m)
|
with
respect to the Variable Multiple Voting Shares transferred to Purchaser
pursuant to Section 3.1(l) and concurrently with the step
contemplated in Section 3.1(g):
|
|
(i)
|
Triples
shall cease to be the holder of such Variable Multiple Voting Shares
and
Triples' name shall be removed as the holder of such Variable Multiple
Voting Shares from the register of Variable Multiple Voting Shares;
and
|
|
(ii)
|
Purchaser
shall be deemed to be the transferee of such Variable Multiple
Voting
Shares (free and clear of any Liens) and shall be entered in the
register
of Variable Multiple Voting Shares as the holder thereof;
and
|
(n) FSHL
shall pay the amount payable to Sharp calculated in accordance with the Sale
of
Control Agreement in full satisfaction of all obligations to Sharp under
the
Sale of Control Agreement.
3.2
Adjustments to Consideration
The
consideration payable by Purchaser or Four Seasons with respect to each Limited
Voting Share transferred pursuant to Sections 3.1(b), 3.1(g), 3.1(h) or
3.1(j), each Four Seasons Option transferred pursuant to Section 3.1(d)
and each Variable Multiple Voting Share transferred pursuant to
Section 3.1(l), 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 Limited Voting Shares or Variable Multiple Voting
Shares other than stock dividends paid in lieu of ordinary course dividends),
consolidation, reorganization, recapitalization or other like change with
respect to Limited Voting Shares or Variable Multiple Voting Shares occurring
after the date of the Acquisition Agreement and prior to the Effective
Time.
Article 4
RIGHTS
OF DISSENT
4.1
Rights of Dissent
Holders
of Limited Voting Shares may exercise dissent rights (“Dissent Rights”) in
connection with the Arrangement in accordance with Section 185 of the OBCA,
the
Interim Order and this Section 4.1; 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
Four Seasons not later than 5:00 p.m. (Toronto time) on the Business Day
immediately preceding the date of the Four Seasons Meeting. Dissenting
Shareholders shall be deemed to have transferred Limited Voting Shares held
by
them to Purchaser, as provided in Section 3.1(g), and if ultimately determined
not to be entitled, for any reason, to be paid fair value for their Limited
Voting Shares shall be deemed to have participated in the Arrangement on
the
same basis as a non-dissenting holder of Limited Voting Shares. In no case
shall
Purchaser, Four Seasons or any other person be required to recognize such
holders as holders of Limited Voting Shares after the completion of the step
contemplated by Section 3.1(g).
Article 5
PAYMENT
AND CERTIFICATES
5.1
Payment of Cash Consideration
|
(a)
|
At
the Effective Time, Purchaser shall deposit with the Depositary,
for the
benefit of the holders of Limited Voting Shares (other than Kingdom,
Foundation and FS Washington) and holders of Four Seasons Options
(on
behalf of Four Seasons) cash in the aggregate amount equal to the
payments
contemplated by Sections 3.1(d) and 3.1(h), as the case may be, and
Four Seasons shall deposit with the Depositary cash in the aggregate
amount equal to the payments contemplated by Section
3.1(b).
|
|
(b)
|
Upon
surrender to the Depositary for cancellation of a certificate which
immediately prior to the Effective Time represented Limited Voting
Shares
that were transferred as provided in Sections 3.1(b) or 3.1(h),
together
with a duly completed Letter of Transmittal and with such other
documents
and instruments as would have been required to effect the transfer
of the
shares formerly represented by such certificate under the OBCA
and the
by-laws of Four Seasons, and such additional documents and instruments
as
the Depositary may reasonably require, the holder of such surrendered
certificate shall be entitled to receive in exchange therefor the
cash
payment (net of amounts required to be withheld pursuant to Section
5.4)
which such holder is entitled to receive pursuant to Sections 3.1(b)
or 3.1(h), as applicable, and the certificate so surrendered shall
forthwith be cancelled.
|
|
(c)
|
Subject
to Section 5.3, Purchaser shall cause the Depositary, as soon as
practicable and in any event within ·
days following the later of the Effective Date and the date of
deposit
with the Depositary of the documentation as provided in Section
5.1(b),
to:
|
|
(i)
|
forward
or cause to be forwarded by first class mail (postage paid) to the
holder at the address specified in the Letter of Transmittal;
or
|
|
(ii)
|
if
requested by the holder in the Letter of Transmittal, make available
at
the Depositary for pick-up by the holder;
or
|
|
(iii)
|
if
the Letter of Transmittal neither specifies an address nor contains
a
request as described in Section 5.1(c)(ii), forward or cause to
be forwarded by first class mail (postage paid) to the holder at
the
address of such holder as shown on the share register maintained
by or on
behalf of Four Seasons as at the Effective
Time;
|
a
cheque
representing the cash payment, if any, payable to such holder of Limited
Voting
Shares in accordance with the provisions hereof (net of amounts required
to be
withheld pursuant to Section 5.4).
|
(d)
|
As
soon as practicable and in any event within ·
days following the Effective Date, Purchaser shall cause the Depositary
to
deliver, on behalf of Four Seasons, to each holder of Four Seasons
Options
as reflected on the register maintained by or on behalf of Four
Seasons in
respect of Four Seasons Options, a cheque representing the cash
payment,
if any, which such holder of Four Seasons Options is entitled to
receive
pursuant to Section 3.1(d) (net of amounts required to be withheld
pursuant to Section 5.4).
|
|
(e)
|
No
holder of Limited Voting Shares (other than Kingdom and FS Washington)
shall be entitled to receive any consideration with respect to
the Limited
Voting Shares, other than the cash payment, if any, which they
are
entitled to receive in accordance with Sections 3.1(b) and 3.1(h)
(net of amounts required to be withheld pursuant to Section 5.4)
and,
for greater certainty, no such holder will be entitled to receive any
interest, dividends, premium or other payment in connection
therewith.
|
|
(f)
|
Until
such time as a former holder of the Limited Voting Shares complies
with
the provisions of Section 5.1(b), the cash payment, if any, to which
such holder is entitled (net of amounts required to be withheld
pursuant
to Section 5.4) shall, subject to Section 5.3, be paid to the
Depositary to be held in trust for such holder for delivery to
the holder,
without interest, upon deposit with the Depositary of the documentation
as
provided in
Section 5.1(b).
|
|
(g)
|
Until
surrendered as contemplated by this Section 5.1, each certificate
which immediately prior to the Effective Date represented Limited
Voting
Shares that were cancelled or exchanged as provided in Sections
3.1(b) and
3.1(h) shall be deemed at all times after the time which is 5 minutes
following the Effective Time or 20 minutes following the Effective
Time,
respectively, to represent only the right to receive upon such
surrender
(together with the documentation set forth in Section 5.1(b)) the
cash
payment which such holder is entitled to receive pursuant to the
provisions hereof.
|
|
(h)
|
On
the Effective Date, Purchaser shall cause FSHL to pay Sharp the
amount
payable pursuant to Section 3.1(n) and in accordance with the Sale
of
Control Agreement (net of amounts required to be withheld pursuant
to
Section 5.4).
|
5.2
Lost Certificates
In
the
event any certificate which immediately prior to the Effective Time represented
one or more outstanding Limited Voting Shares that were transferred pursuant
to
Sections 3.1(b) or Section 3.1(h) 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 Depositary will pay
in
exchange for such lost, stolen or destroyed certificate, the cash payment
which
such holder is entitled to receive pursuant to Sections 3.1(b) or 3.1(h)
(net of
amounts required to be withheld pursuant to Section 5.4). When authorizing
such
payment in exchange for any lost, stolen or destroyed certificate, the person
to
whom the payment is made shall, as a condition precedent to the delivery
thereof, give a bond satisfactory to Four Seasons, Purchaser and the Depositary
in such sum as Purchaser may direct or otherwise indemnify Purchaser in a
manner
satisfactory to Purchaser against any claim that may be made against Purchaser
with respect to the certificate alleged to have been lost, stolen or
destroyed.
5.3
Extinction of Rights
If
any
holder of Limited Voting Shares fails for any reason to deliver to the
Depositary for cancellation the certificates formerly representing Limited
Voting Shares (or an affidavit of loss and bond or other indemnity pursuant
to Section 5.2), together with such other documents or instruments required
for such holder to receive payment for Limited Voting Shares, on or before
the
sixth anniversary of the Effective Date, such holder shall be deemed to have
donated and forfeited to Purchaser any cash (net of amounts required to be
withheld pursuant to Section 5.4) held by the Depositary in trust for such
holder to which such holder is entitled. At and after the Effective Time,
any
certificate formerly representing Limited Voting Shares shall represent only
the
right to receive the consideration provided in this Plan of Arrangement;
provided that such certificates shall, on the sixth anniversary of the Effective
Date, cease to represent a claim of any nature whatsoever and shall be deemed
to
have been surrendered to Purchaser and shall be cancelled.
5.4
Withholding Rights
Four
Seasons, FSHL, Purchaser and the Depositary shall be entitled to deduct and
withhold from any consideration otherwise payable to any holder of Limited
Voting Shares, to any holder of Four Seasons Options or to Sharp under this
Plan
of Arrangement, such amounts as Four Seasons, FSHL, Purchaser, or the Depositary
is required to deduct and withhold with respect to such payment under the
Tax Act, the United States
Internal Revenue Code of 1986
or any
provision of provincial, state, local or foreign tax law, in each case, as
amended or succeeded and subject to the provisions of any applicable income
tax
treaty between Canada and the country where the holder is resident. To the
extent that amounts are so withheld, such withheld amounts shall be treated
for
all purposes as having been paid to the holder of the Limited Voting Shares
or
Four Seasons Options, as the case may be, or to Sharp in respect of which
such
deduction and withholding was made, provided that such withheld amounts are
actually remitted in accordance with applicable law to the appropriate taxing
authority.
Article 6
AMENDMENTS
6.1
Amendments to Plan of Arrangement
|
(a)
|
Four
Seasons 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
Date,
provided that each such amendment, modification and/or supplement
must be
(i) set out in writing, (ii) approved by Purchaser,
(iii) filed with the Court and, if made following the Four Seasons
Meeting, approved by the Court and (iv) communicated to holders of
Limited Voting Shares if and as required by the
Court.
|
|
(b)
|
Any
amendment, modification or supplement to this Plan of Arrangement
may be
proposed by Four Seasons at any time prior to the Four Seasons
Meeting
(provided that Purchaser shall have consented thereto) with or
without any
other prior notice or communication, and if so proposed and approved
by
the persons voting at the Four Seasons Meeting (as may be required
under
the Interim Order), shall become part of this Plan of Arrangement
for all
purposes.
|
|
(c)
|
Any
amendment, modification or supplement to this Plan of Arrangement
that is
approved by the Court following the Four Seasons Meeting shall
be
effective only if (i) it is consented to by each of Four Seasons and
the Purchaser and (ii) if required by the Court, it is approved by
holders of the Limited Voting Shares voting in the manner directed
by the
Court.
|
|
(d)
|
Any
amendment, modification or supplement to this Plan of Arrangement
may be
made following the Effective Date unilaterally by Purchaser, provided
that
it concerns a matter which, in the reasonable opinion of Purchaser,
is of
an administrative nature required to better give effect to the
implementation of this Plan of Arrangement and is not adverse to
the
financial or economic interests of any holder of Limited Voting
Shares.
|
|
(e)
|
This
Plan of Arrangement may be withdrawn prior to the Effective Time
in
accordance with the terms of the Acquisition
Agreement.
|
Article 7
FURTHER
ASSURANCES
Notwithstanding
that the transactions and events set out herein shall occur and be deemed
to
occur in the order set out in this Plan of Arrangement, within the meaning
of
Section 182 of the OBCA and, in particular, that the share exchanges,
within the meaning of Subsection 182(1)(f) of the OBCA, shall become
effective without any further act or formality, each of the Parties shall
make,
do and execute, or cause to be made, done and executed, all such further
acts,
deeds, agreements, transfers, assurances, instruments or documents as may
reasonably be required by any of them in order further to document or evidence
any of the transactions or events set out herein.
