EXHIBIT 2.1
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EXECUTION COPY
AMENDMENT NO. 3 TO ARRANGEMENT AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is made as of February 7, 2007, by and among
L-1 Identity Solutions, Inc., a Delaware corporation ("PARENT"), 6653375 Canada
Inc., a corporation incorporated under the Canada Business Corporations Act and
a wholly-owned subsidiary of Parent ("PURCHASER"), and Comnetix Inc., a
corporation incorporated under the Canada Business Corporations Act (the
"COMPANY").
WHEREAS Parent, Purchaser and the Company entered into an arrangement agreement
dated as of November 15, 2006 (the "ARRANGEMENT AGREEMENT");
WHEREAS Parent, Purchaser and the Company entered into an amendment to the
Arrangement Agreement dated January 9, 2007 (the "FIRST AMENDMENT AGREEMENT")
and an amendment to the Arrangement Agreement dated January 25, 2007 (the
"SECOND AMENDMENT AGREEMENT", and the Arrangement Agreement as amended by the
First Amendment Agreement and Second Amendment Agreement is referred to as the
"AMENDED ARRANGEMENT AGREEMENT");
WHEREAS concurrently with the First Amendment Agreement and Second Amendment
Agreement, Parent, Purchaser and the Company amended the Plan of Arrangement
(the "AMENDED PLAN OF ARRANGEMENT"); and
WHEREAS Parent, Purchaser and the Company wish to amend the Amended Arrangement
Agreement and the Amended Plan of Arrangement in the manner set out in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, Parent, Purchaser and the
Company hereby agree as follows:
1. Capitalized terms not defined in this Agreement shall have the
respective meanings attributed to them in the Amended Arrangement
Agreement.
2. The third recital to the Amended Arrangement Agreement is amended by
deleting the figure "US$1.12" and inserting in its place "US$1.17".
3. The definition of "In-the-Money Options" in section 1.01(a) of the
Amended Arrangement Agreement is amended by deleting the figure
"US$1.12" and inserting in its place "US$1.17".
4. Section 6.09(c) of the Amended Arrangement Agreement is amended by
deleting the figure "US$335,000" and inserting in its place
"US$381,000".
5. Section 6.14 of the Amended Arrangement Agreement is amended as
follows: (a) in the first sentence, by deleting the figure
"US$1,052,000" and inserting in its place "US$1,006,000"; (b) in item
(v), by deleting the figure "US$335,000" and inserting in its place
"US$381,000"; and (c) in the eleventh sentence, by deleting the figure
"US$975,000" and inserting in its place "US$929,000".
6. Section 7.02(f) of the Amended Arrangement Agreement is amended by
deleting the figure "US$17,065,000" and inserting in its place
"US$17,827,000".
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7. Section 8.05(b) of the Amended Arrangement Agreement is amended by
deleting the figure "US$1.12" and inserting in its place "US$1.17".
8. Section 6.03 of the Amended Arrangement Agreement is amended by adding
the following sentences immediately after the second sentence:
"The Company covenants that on February 8, 2007 it shall not
adjourn or postpone the Company Meeting without the prior
written consent of L-1, not to be unreasonably withheld, and
provided the Company Meeting shall be reconvened and all
business in the Circular completed no later than February 15,
2007. The Company further covenants that it shall apply to the
Court for the Final Order no later than February 16, 2007 and
that it shall use its best efforts to obtain the Final Order
no later than February 16, 2007. The Company further covenants
that it shall file Articles of Arrangement as soon as
practical after obtaining the Final Order and in any case
within two Business Days of obtaining the Final Order."
9. Section 2.2(a) of the Amended Plan of Arrangement is amended by
deleting the figures "US$1.12" and "US$17,065,000" and inserting in
their place "US$1.17" and "US$17,827,000", respectively.
10. A copy of the Amended Plan of Arrangement, as amended by this Agreement
(the "THIRD AMENDED PLAN OF ARRANGEMENT"), is annexed as Schedule A to
this Agreement. In accordance with section 5.1(1) of the Amended Plan
of Arrangement, the Company shall, as soon as practical, file a copy of
the Third Amended Plan of Arrangement with the Court.
11. Other than as amended by this Agreement, the Amended Arrangement
Agreement and the Amended Plan of Arrangement shall remain in full
force and effect.
12. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws
thereof, except to the extent mandatorily governed by the law of
another jurisdiction. Each of the parties hereto (i) irrevocably
consents to the exclusive jurisdiction and venue of the Courts of the
State of Delaware in connection with any matter based upon or arising
out of this Agreement or the matters contemplated herein, except as has
otherwise been agreed to with respect to the consideration of the
Arrangement by the Court, and (ii) waives and covenants not to assert
or plead any objection which they might otherwise have to such
jurisdiction, venue and such process.
13. Each of the parties hereto hereby waives to the fullest extent
permitted by applicable Law any right it may have to a trial by jury
with respect to any litigation directly or indirectly arising out of,
under or in connection with this Agreement or the Transaction. Each of
the parties hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to
enforce that foregoing waiver and (b) acknowledges that it and the
other parties hereto have been induced to enter into this Agreement and
the Transaction, as applicable, by, among other things, the mutual
waivers and certifications in this Section 13.
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14. This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties
hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
6653375 CANADA INC. L-1 IDENTITY SOLUTIONS, INC.
By: "Xxxxxx X. XxXxxxx" By: "Xxxxxx X. XxXxxxx"
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Name: Xxxxxx X. XxXxxxx Name: Xxxxxx X. XxXxxxx
Title: Chairman and President Title: Chairman, President and CEO
COMNETIX INC.
By: "Xxxxxxx X. Xxxxxx"
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Name: Xxxxxxx X. Xxxxxx
Title: Chairman and CEO
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EXECUTION COPY
SCHEDULE A
THIRD AMENDED PLAN OF ARRANGEMENT
PLAN OF ARRANGEMENT
UNDER SECTION 192
OF THE CANADA BUSINESS CORPORATIONS ACT
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:
"ARRANGEMENT" means an arrangement under section 192 of the CBCA 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 9.02 of the Arrangement Agreement or this Plan
of Arrangement or made at the direction of the Court in the Final
Order.
"ARRANGEMENT AGREEMENT" means the arrangement agreement made as of the
15th day of November, 2006 among Parent, the Purchaser and the Company,
as amended, supplemented and/or restated in accordance therewith prior
to the Effective Date, providing for, among other things, the
Arrangement.
"ARRANGEMENT RESOLUTION" means the special resolution of the Company
Securityholders approving the Plan of Arrangement as required by the
Interim Order and applicable law, to be substantially in the form
attached to the Circular.
"ARTICLES OF ARRANGEMENT" means the articles of arrangement of the
Company in respect of the Arrangement that are required by the CBCA to
be sent to the Director after the Final Order is made.
"BUSINESS DAY" means any day on which banks are not required or
authorized to close in The City of New York or in Toronto.
"CASH CONSIDERATION" has the meaning ascribed thereto in Section 2.2(a)
of this Plan of Arrangement.
"CBCA" means the Canada Business Corporations Act as in effect as of
the date hereof and as may be amended from time to time prior to the
Effective Time.
"CERTIFICATE" means the certificate of arrangement giving effect to the
Arrangement, issued pursuant to Section 192(7) of the CBCA after the
Articles of Arrangement have been filed.
"CIRCULAR" means the notice of the Company Meeting, accompanying
management proxy circular and forms of proxy, including all appendices
thereto, to be sent to the Company Securityholders in connection with
the Company Meeting, as may be amended from time to time.
"COMPANY" means Comnetix Inc., a corporation existing under the CBCA.
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"COMPANY COMMON STOCK" means the Company's common shares without par
value.
"COMPANY MEETING" means the special meeting of the Company
Securityholders, including any adjournment thereof, to be called and
held in accordance with the Interim Order to consider the Arrangement.
"COMPANY SECURITYHOLDERS" means the Company Shareholders and Company
Warrantholders.
"COMPANY SHAREHOLDERS" means the holders of Company Common Stock.
"COMPANY WARRANTHOLDERS" means the holders of Company 2007 Warrants.
"COMPANY 2007 WARRANTS" means the warrants of the Company issued on
January 29, 2004 and exercisable for an aggregate of 342,251 shares of
Company Common Stock at any time prior to April 22, 2007, at an
exercise price of $2.00 per share of Company Common Stock.
"COURT" means the Superior Court of Justice (Ontario).
"DEPOSITARY" means such trust company or other Person as may be
appointed by Parent, from time to time, to act as depositary for the
purpose of the Arrangement.
"DIRECTOR" means the Director appointed pursuant to Section 260 of the
CBCA.
"DISSENT RIGHTS" has the meaning ascribed thereto in Section 3.1.
"DROP DEAD DATE" means March 29, 2007, or such later date as may be
mutually agreed by the parties to the Arrangement Agreement.
"EFFECTIVE DATE" means the date shown on the Certificate, provided that
such date occurs on or prior to the Drop Dead Date.
"EFFECTIVE TIME" means 12:01 a.m. (Toronto time) on the Effective Date.
"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.
"GOVERNMENTAL AUTHORITY" means: (i) any domestic or foreign, national,
federal, provincial, state, county, local, municipal or regional
government or body; (ii) any multinational, multilateral or
international body; (iii) any subdivision, agency, commission, board,
instrumentality or authority of any of the foregoing governments or
bodies; (iv) any quasi-governmental or private body exercising any
regulatory, expropriation or taxing authority under or for the account
of any of the foregoing governments or bodies; (v) any domestic,
foreign, international, multilateral or multinational judicial,
quasi-judicial, arbitration or administrative court, tribunal,
commission, board or panel; or (vi) any person employed by, acting for,
or on behalf of, any of the foregoing bodies.
"HOLDERS" means the holders of Company Common Stock shown from time to
time in the register maintained by or on behalf of the Company in
respect of the Company Common Stock.
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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
2.02 of the Arrangement Agreement.
"LETTER OF TRANSMITTAL" means the letter of transmittal for use by the
Company Shareholders, in the form accompanying the Circular.
"MEETING DATE" means the date of the Company Meeting.
"NOON SPOT RATE" means, on any day, the Noon Spot Rate on such day of
the Bank of Canada for one Canadian dollar expressed in U.S. dollars.
"PARENT" means L-1 Identity Solutions, Inc., a corporation existing
under the laws of the State of Delaware.
"PERSON" means an individual, corporation, partnership, limited
partnership, limited liability company, syndicate, person, trust,
association or entity or government, political subdivision, agency or
instrumentality of a government.
"PURCHASER" means 6653375 Canada Inc., a corporation existing under the
CBCA.
"WARRANT CONSIDERATION" means with respect to each share of Company
Common Stock that would be issuable upon the due exercise of a Company
2007 Warrant, an amount equal to $0.03 per share, payable in cash.
SECTION 1.2 SECTIONS AND HEADINGS
The division of this Plan of Arrangement into sections and the
insertion of headings are for reference purposes only and shall not affect the
interpretation of this Plan of Arrangement. Unless otherwise indicated, any
reference in this Plan of Arrangement to a section or an exhibit refers to the
specified section of or exhibit to this Plan of Arrangement.
SECTION 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.
SECTION 1.4 CURRENCY
Except as expressly indicated otherwise, all sums of money referred to
in this Plan of Arrangement are expressed and shall be payable in Canadian
dollars.
SECTION 1.5 TIME
Time shall be of the essence in each and every matter or thing herein
provided. Unless otherwise indicated, all times expressed herein are local time
in Toronto, Ontario.
SECTION 1.6 DATE FOR ANY ACTION
If the date on which any action is required to be taken hereunder is
not a Business Day in the place where the action is required to be taken, such
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action shall be required to be taken on the next succeeding day which is a
Business Day in such place.
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) the Company, (ii) Parent, (iii) the
Purchaser, and (iv) all holders and all beneficial holders of the Company Common
Stock and Company 2007 Warrants.
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) each of the outstanding shares of Company Common Stock that is
not held by a holder who has exercised its Dissent Rights and
is ultimately entitled to be paid the fair value of its shares
of Company Common Stock (other than shares of Company Common
Stock held by Parent or the Purchaser or any affiliate
thereof) will be transferred by the holder thereof to the
Purchaser in exchange for US $1.17 per share of Company Common
Stock, payable in cash, subject to adjustment in accordance
with Section 6.15 of the Arrangement Agreement (the "CASH
CONSIDERATION"). Notwithstanding any other provision in this
Plan of Arrangement or the Arrangement Agreement, subject to
Section 6.10 of the Arrangement Agreement, in no event shall
the number of shares of Company Common Stock outstanding at
the Effective Time exceed 15,235,903 shares of Company Common
Stock, and in no event shall the aggregate Cash Consideration
exceed US $17,827,000;
(b) each share of Company Common Stock in respect of which Dissent
Rights have been exercised shall be and shall be deemed to be
transferred to the Purchaser with the Purchaser and the Parent
being jointly and severally obligated to pay therefor the
amount determined in accordance with Article 3 of this Plan of
Arrangement;
(c) with respect to each share of Company Common Stock acquired or
transferred in accordance with Section 2.2(a) or Section
2.2(b):
(i) the holder thereof shall cease to be the holder of
such share of Company Common Stock and the name of
such holder shall be removed from the register of
holders of Company Common Stock;
(ii) the certificate representing such share of Company
Common Stock shall be deemed to have been canceled as
of the Effective Time;
(iii) the holder thereof shall be deemed to have executed
and delivered all consents, releases, assignments and
waivers, statutory or otherwise, required to acquire
or transfer such shares in accordance with Section
2.2(a) or Section 2.2(b); and
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(iv) the Purchaser shall be and shall be deemed to be the
transferee of such share of Company Common Stock if
transferred in accordance with Section 2.2(a) or
Section 2.2(b) and shall be entered in the register
of registered holders of the Company as the legal
holder of such shares of Company Common Stock.
(d) each outstanding Company 0000 Xxxxxxx (other than Company 2007
Warrants held by Parent or the Purchaser or any affiliate
thereof) will be transferred by the holder thereof to the
Company in exchange for the Warrant Consideration;
(e) with respect to each Company 0000 Xxxxxxx acquired or
transferred in accordance with Section 2.2(d):
(i) the holder thereof shall cease to be the holder of
such Company 0000 Xxxxxxx and the name of such holder
shall be removed from the register of holders of
Company 2007 Warrants;
(ii) the certificate representing such Company 2007
Warrant shall be deemed to have been cancelled as of
the Effective Time;
(iii) the holder thereof shall be deemed to have executed
and delivered all consents, releases, assignments and
waivers, statutory or otherwise, required to acquire
or transfer such Company 0000 Xxxxxxx in accordance
with Section 2.2(d); and
(iv) the Company shall be and shall be deemed to be the
transferee of the Company 2007 Warrants transferred
in accordance with Section 2.2(d) and shall be
entered in the register of holders of the Company
2007 Warrants as the legal holder of such Company
2007 Warrants.
ARTICLE 3
RIGHTS OF DISSENT
SECTION 3.1 RIGHTS OF DISSENT
Holders of the Company Common Stock may exercise rights of dissent with
respect to such shares pursuant to and in the manner set forth in section 190 of
the CBCA and this Section 3.1 (the "DISSENT RIGHTS") in connection with the
Arrangement; provided that, notwithstanding subsection 190(5) of the CBCA, the
written objection to the Arrangement Resolution referred to in subsection 190(5)
of the CBCA must be received by the Company not later than 5:00 p.m. (Toronto
time) on the Business Day preceding the Company Meeting. Holders of the Company
Common Stock who duly exercise such rights of dissent and who:
(a) are ultimately determined to be entitled to be paid fair value
for their Company Common Stock shall be deemed to have
transferred such Company Common Stock to the Purchaser in
accordance with Section 2.2(b) hereof to the extent the fair
value therefor is paid by the Purchaser; or
(b) are ultimately determined not to be entitled, for any reason,
to be paid fair value for their Company Common Stock shall be
deemed to have participated in the Arrangement on the same
basis as a non-dissenting holder of the Company Common Stock
and shall receive from the Purchaser the Cash Consideration on
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the basis determined in accordance with, Section 2.2(a)
hereof;
but in no case shall Parent, the Purchaser, the Company or any other Person be
required to recognize such holders as holders of Company Common Stock after the
Effective Time, and the names of such holders of Company Common Stock shall be
deleted from the registers of holders of Company Common Stock at the Effective
Time,
ARTICLE 4
CERTIFICATES AND CHEQUES
SECTION 4.1 EXCHANGE OF CERTIFICATES FOR CASH CONSIDERATION
At or prior to the Effective Time, the Purchaser shall deposit with the
Depositary an amount equal to the product of the Cash Consideration and the
number of shares of Company Common Stock acquired by the Purchaser pursuant to
Section 2.2(a). Upon surrender to the Depositary for cancellation of a
certificate which immediately prior to the Effective Time represented
outstanding shares of Company Common Stock that were exchanged for the Cash
Consideration under the Arrangement, together with a duly completed Letter of
Transmittal and such other documents and instruments as would have been required
to effect the transfer of the shares formerly represented by such certificate
under the CBCA and the by-laws of the Company 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, and
the Depositary shall deliver to such holder, a cheque in an amount equal to the
product of the Cash Consideration and the number of shares of Company Common
Stock represented by such certificate, and the certificate so surrendered shall
forthwith be cancelled. In the event of a transfer of ownership of shares of
Company Common Stock which is not registered in the transfer records of shares
of the Company, a cheque in an amount equal to the Product of the Cash
Consideration and the number of such shares may be issued to the transferee if
the certificate representing such shares of Company Common Stock is presented to
the Depositary, 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 shares of Company Common Stock that were exchanged for the Cash
Consideration shall be deemed at all times after the Effective Time to represent
only the right to receive upon such surrender a cheque in an amount equal to the
product of the Cash Consideration and the number of shares of Company Common
Stock represented by such certificate.
SECTION 4.2 LOST CERTIFICATES
In the event any certificate which immediately prior to the Effective
Time represented one or more outstanding shares of Company Common Stock 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 Depositary will issue in
exchange for such lost, stolen or destroyed certificate, a cheque in an amount
equal to the product of the Cash Consideration and the number of shares of
Company Common Stock represented by such lost, stolen or destroyed certificate
deliverable in accordance with the terms of the Arrangement. When authorizing
such payment in exchange for any lost, stolen or destroyed certificate, the
Person to whom such cheque is to be issued shall, as a condition precedent to
the issuance thereof, give a bond reasonably satisfactory to Parent and its
transfer agent in such sum as Purchaser or Parent may direct or otherwise
indemnify Purchaser and Parent in a manner reasonably satisfactory to Purchaser
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and Parent against any claim that may be made against Purchaser or Parent with
respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 4.3 EXTINCTION OF RIGHTS
Subject to any applicable laws, any certificate which immediately prior
to the Effective Time represented outstanding shares of Company Common Stock
that were exchanged pursuant to Section 2.2 that is not deposited with all other
instruments required by Section 4.1 on or prior to the sixth anniversary of the
Effective Date shall cease to represent a claim or interest of any kind or
nature as a creditor of the Purchaser for the Cash Consideration. On such date,
the amount 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 Purchaser. None of Parent, Purchaser or the
Depositary shall be liable to any person in respect of any amount (including
interest in respect thereof) delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
SECTION 4.4 WITHHOLDING RIGHTS
Purchaser, Parent and the Depositary shall be entitled to deduct and
withhold from the Cash Consideration payable to any former holder of Company
Common Stock, or from the Warrant Consideration payable to a former Company
Warrantholder, such amounts as Purchaser, Parent or the Depositary is required
to deduct and withhold with respect to such payment under the Income Tax Act
(Canada), the United States Internal Revenue Code of 1986 or any provision of
provincial, 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 in respect of which such
deduction and withholding was made, provided that such withheld amounts arc
actually remitted to the appropriate taxing authority.
SECTION 4.5 EXCHANGE OF COMPANY 2007 WARRANTS
Upon surrender to the Company for cancellation of a certificate which
immediately prior to the Effective Time represented outstanding Company 2007
Warrants that were exchanged for the Warrant Consideration under the
Arrangement, together with such other documents and instruments as would have
been required to effect the transfer of the Company 2007 Warrants formerly
represented by such certificate under the terms of the Company 2007 Warrants and
such additional documents and instruments as the Company may reasonably require,
the holder of such surrendered certificate shall be entitled to receive in
exchange therefor, and the Company shall deliver to such holder, a cheque
representing the Warrant Consideration which such holder has the right to
receive, and the certificate so surrendered shall forthwith be cancelled. In the
event of a transfer of ownership of Company 2007 Warrants which is not
registered in the transfer register of the Company 2007 Warrants, a cheque
representing the Warrant Consideration may be issued to the transferee if the
certificate representing such Company 2007 Warrants is presented to the Company,
accompanied by all documents required to evidence and effect such transfer and
such additional documents and instruments as the Company may reasonably require.
Until surrendered as contemplated by this Section 4.5, each certificate which
immediately prior to the Effective Time represented outstanding Company 2007
Warrants that were exchanged for the Warrant Consideration shall be deemed at
all times after the Effective Time to represent only the right to receive upon
such surrender a cash payment representing the Warrant Consideration.
SECTION 4.6 EXTINCTION OF RIGHTS OF COMPANY 2007 WARRANTS
Subject to any applicable laws, any certificate which immediately prior
to the Effective Time represented outstanding Company 2007 Warrants that was
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exchanged pursuant to Section 2.2 that is not deposited with the Company
together with all other instruments required by Section 4.5 on or prior to the
sixth anniversary of the Effective Date shall cease to represent a claim or
interest of any kind or nature as a creditor of the Company for the Warrant
Consideration. On such date, the Warrant Consideration 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 the
Company. None of the Company, Parent or Purchaser shall be liable to any person
in respect of any amount (including interest in respect thereof) delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law.
ARTICLE 5
AMENDMENTS
SECTION 5.1 AMENDMENTS TO PLAN OF ARRANGEMENT
(1) The Company 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 Parent,
(iii) filed with the Court and, if made following the Company Meeting,
approved by the Court and (iv) communicated to the Company
Securityholders.
(2) Any amendment, modification or supplement to this Plan of Arrangement
may be proposed by the Company at any time prior to the Company Meeting
(provided that Parent shall have consented thereto) with or without any
other prior notice or communication, and if so proposed and accepted by
the Company Securityholders voting at the Company Meeting (other than
as may be required 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 by the Court following the Company Meeting shall be
effective only if (i) it is consented to by each of the Company and
Parent and (ii) if required by the Court, it is communicated to or
consented to by the Company Securityholders.
ARTICLE 6
FURTHER ASSURANCES
SECTION 6.1 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
without any further act or formality, each of the parties to the Arrangement
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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