Delaware | 001-36384 | 20-8881738 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
12181 Bluff Creek Drive, 4th Floor | ||
Los Angeles, CA 90094 | ||
(Address of principal executive offices, including zip code) | ||
(310) 207-0272 | ||
(Registrant’s telephone number, including area code) | ||
Not applicable | ||
(Former name or former address, if changed since last report) |
Exhibit Number | Description |
2.1 | Amendment Agreement, dated as of April 20, 2015, by and among, The Rubicon Project, Inc., Chango Inc., and Fortis Advisors LLC, as the Securityholder Representative. |
99.1 | Press release, dated April 27, 2015 (solely furnished and not filed for purposes of Item 7.01). |
THE RUBICON PROJECT, INC. | ||
Date: April 27, 2015 | By: | /s/ Jonathan Feldman |
Jonathan Feldman | ||
Deputy General Counsel and Assistant Secretary |
Exhibit Number | Description |
2.1 | Amendment Agreement, dated as of April 20, 2015, by and among, The Rubicon Project, Inc., Chango Inc., and Fortis Advisors LLC, as the Securityholder Representative. |
99.1 | Press release, dated April 27, 2015 (solely furnished and not filed for purposes of Item 7.01). |
1. | The Plan of Arrangement attached to Exhibit D of the Arrangement Agreement is hereby replaced with the Plan of Arrangement attached to Exhibit A to this Amendment. |
2. | This Amendment shall be governed by, and construed in accordance with, the Laws of the Province of Ontario and the federal laws of Canada applicable therein. |
3. | This Amendment may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. |
THE RUBICON PROJECT, INC | |
By: | /s/ Jonathan Feldman |
Name: Jonathan Feldman | |
Title: Assistant Secretary |
CHANGO INC. | |
By: | /s/ Chris Sukornyk |
Name: Chris Sukornyk | |
Title: Chief Executive Officer |
FORTIS ADVISORS LLC, as the Securityholder Representative | |
By: | /s/ Rick Fink |
Name: Rick Fink | |
Title: CEO and Managing Director |
1.1 | Definitions |
(a) | with respect to one Company Common Share registered in the name of a Registered Shareholder (other than a Founder Group Member), (i) the Per Share Closing Amount, plus (ii) the right to receive the Per Share Adjustment Amount, if any, pursuant to Section 2.6, plus (iii) the right to receive the Per Share Contingent Amount, if any, pursuant to Section 2.5; or |
(b) | with respect to one Company Common Share registered in the name of a Registered Shareholder that is a Founder Group Member, (i) 84% of the Per Share Closing Amount, plus (ii) the right to receive the Per Share Adjustment Amount, if any, pursuant to Section 2.6, plus (iii) the right to receive the Per Share Contingent Amount, if any, pursuant to Section 2.5; plus (iv) the right to receive the Special Per Share Contingent Amount in accordance with the Arrangement Agreement and the Escrow Agreement; |
ECC + WEX | ||
FDS |
CS | X | 100 |
TCS |
CS × (PSCA – EP) | ||
PSCA |
1.2 | Number and Gender |
1.3 | Interpretation Not Affected by Headings, etc. |
1.4 | Time |
1.5 | Currency |
1.6 | Statutory References |
1.7 | Date for Any Action |
2.1 | Effectiveness |
(a) | the Company; |
(b) | Sub; |
(c) | Parent; |
(d) | Funding Sub; |
(e) | all Company Securityholders (including, for greater certainty, any Founder Group Members that are Company Securityholders); |
(f) | the Securityholder Representative; |
(g) | the registrar and transfer agent in respect of the Company Shares; |
(h) | the Exchange Agent; and |
(i) | the Escrow Agent. |
2.2 | The Arrangement |
(a) | each Cash Out Warrant: |
(i) | shall be, and shall be deemed to be, transferred to the Company in consideration for the issuance by the Company of the Warrant Share Entitlement with respect to such Cash Out Warrant and the holder of such Cash Out Warrant shall be, and shall be deemed to be, recorded on the register of holders of the applicable class of Company Shares as the registered holder of the Warrant Share Entitlement in respect of such Cash Out Warrant (in addition to any Company Shares of such class already registered in the name of such holder immediately prior to the step set out in this Section 2.2(a)) and shall be, and shall be deemed to be, the registered and beneficial owner of the Warrant Share Entitlement in respect of such Cash Out Warrant; provided that, in each case, the aggregate number of Company Shares to be received by a holder of Cash Out Warrants on the cancellation of all of such holder’s Cash Out Warrants in consideration for Company Shares pursuant to this Section 2.2(a) shall be rounded to the nearest whole number of Company Shares; and |
(ii) | following the transfer contemplated in Section 2.2(a)(i), each Cash Out Warrant outstanding as at the Closing Time shall be, and shall be deemed to be, immediately cancelled; |
(b) | two minutes after completion of the immediately preceding step, notwithstanding the terms and conditions of the Company Articles or of any agreement relating to the exercise, conversion or exchange of Company Preferred Shares for or into Company Common Shares: |
(i) | each Company Preferred Share outstanding immediately prior to this step shall be, and shall be deemed to be, converted into one Company Common Share without payment by the Company of any accrued or declared but unpaid dividends with respect to such Company Preferred Shares; |
(ii) | the name of the registered holder of such Company Preferred Share shall be, and shall be deemed to be, removed from the register of holders of Company Preferred Shares and shall be, and shall be deemed to be, recorded on the register of holders of Company Common Shares as the registered holder of the number of Company Common Shares equal to the number of Company Preferred Shares held by such registered holder immediately prior to this step and so converted into Company Common Shares (in addition to any Company Common Shares registered in the name of such registered holder as at the Closing Time); |
(iii) | such registered holder shall be, and shall be deemed to be, the registered owner of such number of Company Common Shares (in addition to any Company Common Shares already registered in the name of such holder as at the Closing Time); |
(iv) | in respect of the issuance of Company Common Shares on conversion of those Company Class A Shares outstanding immediately prior to this step, an amount shall be added to the stated capital account in respect of the Company Common Shares equal to “paid-up capital” in respect of such Company Class A Shares, as determined in accordance with the Tax Act; |
(v) | in respect of the issuance of Company Common Shares on conversion of those Company Class B Shares outstanding immediately prior to this step, an amount shall be added to the stated capital account in respect of the Company Common Shares equal to “paid-up capital” in respect of such Company Class B Shares, as determined in accordance with the Tax Act; and |
(vi) | in respect of the issuance of Company Common Shares on conversion of those Company Class B-1 Shares outstanding immediately prior to this step, an amount shall be added to the stated capital account in respect of the Company Common Shares equal to “paid-up capital” in respect of such Company Class B-1 Shares, as determined in accordance with the Tax Act; |
(c) | two minutes after completion of the immediately preceding step, notwithstanding the terms and conditions of the Company Shareholders Agreement and any other agreement that provides any rights to any Company Securityholder with respect to the management of the business or affairs of the Company, the Company Shareholders Agreement and each such other agreement that provides any rights to any Company Securityholder with respect to the management of the business or affairs of the Company shall be, and shall be deemed to be, terminated; |
(d) | simultaneous with the immediately preceding step, (i) any Company Securityholder who has not executed and delivered a counterpart or joinder to the Arrangement Agreement shall be deemed to have executed and delivered the Arrangement Agreement for the purposes of being bound by Sections 2.16, 2.17 and 6.5 and Articles IX and XI of the Arrangement Agreement as a “Company Securityholder” thereunder, as if such Company Securityholder had executed and delivered the Arrangement Agreement, and (ii) without limiting (i), any Selling Shareholder who has not executed and delivered a counterpart or joinder to the Arrangement Agreement shall be deemed to have executed and delivered the Arrangement Agreement for the purposes of being bound by the Arrangement Agreement (including, for greater certainty, Sections 2.11, 2.12, 2.13, 2.16, 2.17, 6.5, 7.1, 7.2 and 11.1 and Articles IX and XI thereof) as a “Selling Shareholder” thereunder, in each case, as if such Selling Shareholder had executed and delivered the Arrangement Agreement. For greater clarity, each Company Securityholder who executed and delivered the Arrangement Agreement prior to |
(e) | two minutes after completion of the immediately preceding step: |
(i) | each Company Common Share (including each Company Preferred Share converted into a Company Common Share pursuant to Section 2.2(b)) in respect of which Dissent Rights have been validly exercised before the Closing Time shall be, and shall be deemed to be, transferred by the registered holder thereof to Sub in consideration for a debt claim against Sub in an amount determined and payable in accordance with Article 4 and the name of such registered holder shall be, and shall be deemed to be, removed from the register of holders of Company Common Shares (including the Company Preferred Shares converted into Company Common Shares pursuant to Section 2.2(b)) for which Dissent Rights have been validly exercised before the Closing Time; and |
(ii) | Sub shall be, and shall be deemed to be, recorded on the register of holders of Company Common Shares as the registered holder of such Company Common Shares so transferred pursuant to Section 2.2(e)(i) and shall be, and shall be deemed to be, the registered and beneficial owner of such Company Common Shares; |
(f) | two minutes after completion of the immediately preceding step: |
(i) | at the election of Sub (which election shall be communicated by Sub to Funding Sub in writing before the Closing Time), either: |
(A) | Funding Sub shall transfer, and shall be deemed to have transferred, to Sub, $100,000 of cash and that number of shares of Parent Common Stock sufficient to satisfy Sub’s obligation to deposit the applicable portions of the Aggregate Closing Amount with the Exchange Agent and the Escrow Agent pursuant to Section 2.4 and to satisfy the aggregate amount of withholdings to be deducted pursuant to Section 2.2(g)(i)(B)(1) (if any) for a purchase price equal to the Aggregate Closing Amount, and, in satisfaction of the purchase price for such cash and shares of Parent Common Stock, Sub shall issue, and shall be deemed to have issued, to Funding Sub 9,999,900 common shares in the capital of Sub; or |
(B) | Sub shall direct, and shall be deemed to have directed, Funding Sub, to deposit with the Exchange Agent and the Escrow Agent, on behalf of Sub, $100,000 of cash and that number of shares of Parent Common Stock sufficient to satisfy Sub’s obligation to deposit the applicable portions of the Aggregate Closing Amount |
(ii) | Funding Sub shall be, and shall be deemed to be, recorded on the register of holders of common shares in the capital of Sub issued to it pursuant to Section 2.2(f)(i) and shall be, and shall be deemed to be, the registered and beneficial owner of such common shares; and |
(iii) | an amount shall be added to the stated capital account in respect of the common shares in the capital of Sub issued pursuant to Section 2.2(f)(i) equal to the Aggregate Closing Amount; |
(g) | immediately after completion of the immediately preceding step: |
(i) | each Company Common Share outstanding immediately prior to this step not registered in the name of Sub at such time shall be, and shall be deemed to be, transferred by the registered holder thereof to Sub in exchange for the Exchange Consideration; provided that, in each case: (I) payment of the aggregate amount of Exchange Consideration that such registered holder of Company Common Shares shall be entitled to receive pursuant to this Section 2.2(g) shall be made in accordance in Sections 2.4, 2.5 and 2.6; and (II) such aggregate amount shall, and shall be deemed to: |
(A) | be rounded to the nearest whole cent; and |
(1) | be subject to applicable withholdings, if any, determined in accordance with Section 5.4; |
(2) | have segregated from such aggregate amount of Exchange Consideration an amount equal to such registered holder’s Proportionate Escrow Amount, which amount shall be deposited with the Escrow Agent on behalf of such registered holder pursuant to this Plan of Arrangement and the Escrow Agreement and released by the Escrow Agent in accordance with the terms and subject to the conditions of the Arrangement Agreement and the Escrow Agreement; and |
(3) | in the case of the Founder, without limiting, and in addition to, the amount contemplated in Section 2.2(g)(i)(B)(2), have segregated from such aggregate amount of Exchange Consideration an amount equal to the Retention Amount, |
(ii) | the name of such registered holder shall be, and shall be deemed to be, removed from the register of holders of Company Common Shares; and |
(iii) | Sub shall be, and shall be deemed to be, recorded on the register of holders of Company Common Shares as the registered holder of such Company Common Shares so transferred to it pursuant to Section 2.2(g)(i) and shall be, and shall be deemed to be, the registered and beneficial owner of such Company Common Shares; |
(h) | two minutes after completion of the immediately preceding step, notwithstanding the terms and conditions of the Company Option Plan, the Company Option Plan shall be, and shall be deemed to be, assumed by Parent as a stock option plan of Parent, and any Company Common Shares remaining available for future grant under the Company Option Plan will be replaced with a number shares of Parent Common Stock determined by multiplying such number of Company Common Shares by the Company Option Exchange Ratio (with any reference to Company Common Shares or the board of directors of the Company therein being deemed a reference to the shares of Parent Common Stock or the board of directors of Parent, as the case may be); |
(i) | two minutes after completion of the immediately preceding step, notwithstanding the terms and conditions of the Company Option Plan or of any agreement evidencing the grant of any Company Options, each Company Option outstanding as at the Closing Time shall be, and shall be deemed to be, exchanged for an option to acquire from Parent (a “Replacement Option”), on the terms and conditions as were applicable under such Company Option, including the remaining vesting schedule of such Company Option (other than, for greater certainty, with respect to the number and class of shares for which such Company Option is exercisable for and the Exercise Price per share of such Company Option, as adjusted by this Section 2.2(i)), that number of shares of Parent Common Stock determined by applying the Company Option Conversion Rate, at an exercise price per share equal to the Replacement Exercise Price for such Replacement Option; provided that, in each case, the aggregate number of shares of Parent Common Stock to be received by a holder of Replacement Options on the exercise of all of such holder’s Replacement Options shall be rounded down to the nearest whole share of Parent Common Stock; |
(j) | two minutes after completion of the immediately preceding step, all Rights to Acquire Company Shares outstanding as at the time of this step, if any, shall be, and shall be deemed to be, cancelled and terminated for no consideration; |
(k) | two minutes after completion of the immediately preceding step, each Company Securityholder, on his, her or its own behalf, and on behalf of his, her or its respective heirs, family members, executors, agents, successors and assigns, shall fully and forever release and discharge, and shall be deemed to have fully and forever released and discharged, the Company, Parent, Sub and their respective officers, directors, employees, consultants, agents, investors, shareholders, administrators, Affiliates, divisions, predecessor and successor corporations and assigns from, and shall not sue the foregoing parties concerning, any claim, duty, obligation, cause of action, suit, judgment, debt, demand, cost, compensation, legal fees or other liability or expense relating to such Company Securityholder’s equity ownership in the Company, other than in relation to the Company’s, Parent’s and Sub’s obligations under this Plan of Arrangement and the Arrangement Agreement; |
(l) | two minutes after completion of the immediately preceding step, the stated capital of the Company shall be, and shall be deemed to be, reduced, without any payment by the Company, by deducting that amount from the stated capital account maintained by the Company for the Company Common Shares so that the stated capital is C$1.00 in respect of all of the issued and outstanding Company Common Shares; |
(m) | two minutes after completion of the immediately preceding step, Sub and the Company shall amalgamate with the same effect as if subsection 177(1) and section 179 of the Act were applicable, and shall continue, and shall be deemed to have been continued, as one corporation (“Amalco”) upon the following terms and conditions: |
(i) | the name of Amalco shall be The Rubicon Project Chango, Inc.; |
(ii) | the authorized capital of Amalco shall be the same as the authorized capital of Sub, consisting of an unlimited number of common shares (each, an “Amalco Common Share”); |
(iii) | subject to any unanimous shareholder agreement with respect to Amalco then in force, the securities in the capital of Amalco, other than non-convertible debt securities, shall not be transferred without either the approval of the board of directors of Amalco or the holder or holders of shares in the capital of Amalco to which are attached more than 50% of the votes attaching to all voting shares in the capital of Amalco then outstanding, to be evidenced, in either case, by a resolution of such directors or shareholders, with such approval being given prior to the time of the transfer of such securities; |
(iv) | there shall be no restrictions on the business that Amalco may carry on or on the powers that Amalco may exercise; |
(v) | until changed in accordance with the Act, the address of the registered office of Amalco shall be 488 Wellington Street West, Suite 202, Toronto, Ontario, M5V 1E3; |
(vi) | until repealed, amended or altered or added to, the by-laws of Amalco shall be the same as the by-laws of Sub in force as at the Closing Time; |
(vii) | until changed in accordance with the Act, the board of directors of Amalco shall consist of not less than one and not more than 10 directors, as the directors may from time to time determine; |
(viii) | initially the board of directors of Amalco shall consist of four directors, who shall be the individuals set out below: |
Full Name | Residential Address | Resident Canadian (Yes or No) |
Chris Sukornyk | Yes | |
David Day | No | |
Brian Copple | No | |
Natalie Pechacek | No |
(ix) | subject to the provisions of the Act and any unanimous shareholder agreement, the board of directors of Amalco shall manage, or supervise the management of, the business and affairs of Amalco; |
(x) | each common share in the capital of Sub shall become one Amalco Common Share and all shares of the authorized capital of the Company, including all Company Common Shares which are outstanding, shall be cancelled without any repayment of capital in respect thereof with the result that there shall be outstanding in the capital of Amalco 10,000,000 Amalco Common Shares; |
(xi) | the form of share certificate for the Amalco Common Shares shall be in the same form as the share certificate for the common shares in the capital of Sub but shall reflect the name of Amalco instead of Sub; |
(xii) | the stated capital of Amalco Common Shares shall be the same as the stated capital of the common shares in the capital of Sub; |
(xiii) | the property of Sub and of the Company immediately after completion of the preceding step shall continue to be the property of Amalco (except (A) amounts receivable by Sub from the Company or by the Company from Sub and (B) Company Common Shares owned by Sub); |
(xiv) | Amalco shall continue to be liable for the obligations of Sub and of the Company (except for amounts payable by Sub to the Company or the Company to Sub); |
(xv) | any existing cause of action, claim or liability to prosecution relating to Sub or the Company shall be unaffected; |
(xvi) | any civil, criminal or administrative action or proceeding pending by or against Sub or the Company may continue to be prosecuted by or against Amalco; |
(xvii) | any conviction against, or ruling, order or judgment in favour of or against, Sub or the Company may be enforced by or against Amalco; and |
(xviii) | the Articles of Arrangement shall be deemed to be articles of amalgamation of Amalco and the Certificate of Arrangement shall be deemed to be the certificate of amalgamation of Amalco. |
2.3 | Letter of Transmittal |
2.4 | Delivery of Exchange Agent Closing Time Consideration Amount and Indemnity Amount |
(a) | Within five Business Days of the Closing Date, Sub (or Funding Sub, on behalf of Sub) shall deposit, or cause to be deposited, with: |
(i) | the Exchange Agent, in Sub’s sole discretion, $100,000 in cash and shares of Parent Common Stock equal in value to the Exchange Agent Closing Time Consideration Amount, which shall be held, subject to the Exchange Agent Agreement, for the benefit of and in trust for those former Registered Shareholders entitled to receive a portion of the Exchange Agent Closing Time Consideration Amount pursuant to Section 2.2(g); |
(ii) | the Escrow Agent, in Sub’s sole discretion, cash and/or shares of Parent Common Stock equal in value to the Indemnity Amount, which shall be held in escrow by the Escrow Agent and released in accordance with the Arrangement Agreement and the Escrow Agreement; |
(iii) | the Escrow Agent, in Sub’s sole discretion, cash and/or shares of Parent Common Stock equal in value to the Aggregate Special Contingent Amount, which shall be held in escrow by the Escrow Agent and released in accordance with the Arrangement Agreement and the Escrow Agreement; and |
(iv) | the Escrow Agent, shares of Parent Common Stock equal in value to the Retention Amount, which shall be held in escrow by the Escrow Agent and released in accordance with the Arrangement Agreement and the Employee Agreement; |
(A) | for those shares of Parent Common Stock used to satisfy the Retention Amount, Sub (or Funding Sub, on behalf of Sub) shall deposit, or cause to be deposited, with the Escrow Agent, subject to clause (D) below, that number book-entry shares of Parent Common Stock equal to: (I) the Retention Amount, divided by (II) the Average Price; |
(B) | if any shares of Parent Common Stock are used to satisfy all or any part of the Exchange Agent Closing Time Consideration Amount, the Indemnity Amount or the Aggregate Special Contingent Amount and, then Sub (or Funding Sub, on behalf of Sub) shall deposit, or cause to be deposited, with: |
(1) | the Exchange Agent, subject to clauses (C) and (D) below, that number of book-entry shares of Parent Common Stock equal to: (I) the Exchange Agent Closing Time Consideration Amount minus $100,000, divided by (II) the Average Price; |
(2) | the Escrow Agent, subject to clauses (C) and (D) below, that number of book-entry shares of Parent Common Stock equal to: (I) the Indemnity Amount minus the amount of cash deposited, or caused to be deposited with the Escrow Agent in respect of the Indemnity Amount (if any), divided by (II) the Average Price; and |
(3) | the Escrow Agent, subject to clauses (C) and (D) below, that number of book-entry shares of Parent Common Stock equal to: (I) the Aggregate Special Contingent Amount minus the amount of cash deposited, or caused to be deposited, with the Escrow Agent in respect of the Aggregate Special Contingent Amount (if any), divided by (II) the Average Price; |
(C) | the ratio of cash to shares of Parent Common Stock deposited for each former Registered Shareholder shall be proportional to that of |
(D) | the number of shares of Parent Common Stock deposited, or caused to be deposited, with the Exchange Agent and the Escrow Agent in respect of each former Registered Shareholder shall be rounded to the nearest whole share; and |
(E) | the amount of cash deposited, or caused to be deposited, with the Exchange Agent and the Escrow Agent, in respect of each former Registered Shareholder, if any, shall be rounded to the nearest cent. |
(b) | Upon deposit of cash and shares of Parent Common Stock equal in value (subject to rounding pursuant to this Plan of Arrangement) to the Exchange Agent Closing Time Consideration Amount with the Exchange Agent and the Indemnity Amount and the Retention Amount with the Escrow Agent, in each case, pursuant to Section 2.4(a), Sub shall be fully and completely discharged from its obligation to pay the Exchange Agent Closing Time Consideration Amount and the Indemnity Amount to the former Registered Shareholders, and the rights of such former Registered Shareholders shall be limited to receiving, subject to them providing duly completed and executed Letters of Transmittal, as applicable: |
(i) | their respective portions of: |
(A) | the amount equal to Exchange Agent Closing Time Consideration Amount; |
(B) | any amount payable pursuant to Section 2.5(a) (if any); and |
(C) | any amount payable pursuant to Section 2.6(a) (if any), |
(ii) | their respective Proportionate Escrow Amounts, in each case, in accordance with this Plan of Arrangement, the Arrangement Agreement, the Consideration Spreadsheet and the Escrow Agreement; |
(iii) | in the case of such former Registered Shareholders that are Founder Group Members, their ratable portion of the Aggregate Special Contingent Amount, if payable, in accordance with this Plan of Arrangement, the Arrangement Agreement, the Consideration Spreadsheet and the Escrow Agreement; and |
(iv) | in the case of the Founder, the Retention Amount, if payable, in accordance with the Employee Agreement and the Escrow Agreement. |
(c) | The Exchange Agent Closing Time Consideration Amount deposited with the Exchange Agent in accordance with Section 2.4(a) shall be delivered to the former Registered Shareholders in accordance with the Exchange Agent Agreement and Section 2.4(e) and shall be paid to such former Registered Shareholders in accordance with this Plan of Arrangement, the Arrangement Agreement, the Exchange Agent Agreement and the Consideration Spreadsheet. The Exchange Agent Closing Time Consideration Amount shall not be used by the Exchange Agent for any purpose except as provided in this Plan of Arrangement, the Arrangement Agreement and the Exchange Agent Agreement. |
(d) | Subject to compliance with Section 2.4(a), the Indemnity Amount, the Aggregate Special Contingent Amount and the Retention Amount deposited with the Escrow Agent in accordance with Section 2.4(a) shall be delivered to the former Registered Shareholders in accordance with the Escrow Agreement and shall be paid to such former Registered Shareholders in accordance with this Plan of Arrangement, the Arrangement Agreement (in the case of the Indemnity Amount and the Aggregate Special Contingent Amount), the Escrow Agreement, the Employee Agreement (in the case of the Retention Amount) and the Consideration Spreadsheet. The Indemnity Amount, the Aggregate Special Contingent Amount and the Retention Amount shall not be used by the Escrow Agent for any purpose except as provided in this Plan of Arrangement, the Arrangement Agreement (in the case of the Indemnity Amount and the Aggregate Special Contingent Amount), the Employee Agreement (in the case of the Retention Amount) and the Escrow Agreement. |
(e) | Upon surrender to the Exchange Agent for cancellation of a certificate, agreement, instrument or other document (a “Certificate”) which immediately prior to the Closing Time represented Company Common Shares (or securities (including the Company Preferred Shares and the Cash Out Warrants) that were exercised for, converted or exchanged into, or cancelled in consideration for Company Common Shares) which were acquired by Sub in accordance with Section 2.2(g), 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 Company Common Shares (or securities (including the Company Preferred Shares and the Cash Out Warrants) that were exercised for, converted or exchanged into, or cancelled in consideration for Company Common Shares), as applicable, formerly represented by such Certificate under the Act and the by-laws of the Company, the registered holder of such surrendered Certificate shall be entitled to receive in exchange therefor, and, as soon as practicable after the Closing Time, Parent shall cause the Exchange Agent to, and the Exchange Agent shall, deliver to such holder, that amount of cash and number of shares of Parent Common Stock representing the portion of the Exchange Agent Closing Time Consideration Amount to which such holder is entitled under the Arrangement in accordance with Section 2.2(g), this Section 2.4 and as set out in the Consideration Spreadsheet. |
(f) | In the event of a transfer of ownership of Company Shares that was not registered in the applicable securities register, the portion of the Exchange Agent Closing |
2.5 | Delivery of Net Contingent Amount |
(a) | Promptly following the final determination of the Contingent Amount pursuant to Section 2.11 of the Arrangement Agreement, Amalco (or Funding Sub or one of the other Subsidiaries of Parent, on behalf of Amalco) shall deposit, or cause to be deposited, with the Exchange Agent, in Amalco’s sole discretion, cash and/or shares of Parent Common Stock equal in value to the Aggregate Contingent Amount less any amount that Sub is permitted to set-off against amounts owing by the Selling Shareholders pursuant to the Arrangement Agreement (the “Net Contingent Amount”); provided that: |
(i) | if any shares of Parent Common Stock are used to satisfy all or any part of the Net Contingent Amount, then Amalco (or Funding Sub or one of the other Subsidiaries of Parent, on behalf of Amalco) shall deposit, or cause to be deposited, with the Exchange Agent on behalf of such Selling Shareholders, subject to Sections 2.5(a)(ii) and 2.5(a)(iii), that number of book-entry shares of Parent Common Stock equal to: (A) the Net Contingent Amount minus the amount of cash deposited, or caused to be deposited with the Exchange Agent in respect of the Net Contingent Amount (if any), divided by (B) the Contingent Average Price; |
(ii) | the ratio of cash to shares of Parent Common Stock deposited, or caused to be deposited, for each Registered Shareholder shall be proportional to each other Registered Shareholder (subject to rounding pursuant to this Plan of Arrangement); |
(iii) | the number of shares of Parent Common Stock deposited, or caused to be deposited, with the Exchange Agent in respect of each former Registered Shareholder shall be rounded to the nearest whole share; and |
(iv) | the amount of cash deposited, or caused to be deposited, with the Exchange Agent, in respect of each former Registered Shareholder, if any, shall be rounded to the nearest cent. |
(b) | Upon deposit of cash and/or shares of Parent Common Stock equal in value to the Net Contingent Amount (subject to rounding pursuant to this Plan of Arrangement) with the Exchange Agent pursuant to Section 2.5(a), Amalco shall be fully and completely discharged from its obligation to pay any amount to the Selling Shareholders pursuant to Section 2.11 of the Arrangement Agreement and the Contingent Amount to the former Registered Shareholders pursuant to this Plan of Arrangement. |
(c) | The Net Contingent Amount deposited with the Exchange Agent in accordance with Section 2.5(a) shall be delivered to the former Registered Shareholders without interest in accordance with the Exchange Agent Agreement and shall be paid to such former Registered Shareholders in accordance with this Plan of Arrangement and the Consideration Spreadsheet. The Net Contingent Amount shall not be used by the Exchange Agent for any purpose except as provided in this Plan of Arrangement and the Exchange Agent Agreement. |
2.6 | Delivery of Aggregate Adjustment Amount |
(a) | If the Final Closing Consideration (as so determined pursuant to Section 2.12 of the Arrangement Agreement) is greater than the Estimated Closing Consideration, Amalco (or Funding Sub or one of the other Subsidiaries of Parent, on behalf of Amalco) shall deposit, or cause to be deposited, with the Exchange Agent, in Amalco’s sole discretion, cash and/or shares of Parent Common Stock equal in value to the Aggregate Adjustment Amount less any amount that Amalco is permitted to set-off against amounts owing to it by the Selling Shareholders pursuant to the Arrangement Agreement (the “Net Aggregate Adjustment Amount”); provided that: |
(i) | if any shares of Parent Common Stock are used to satisfy all or any part of the Net Aggregate Adjustment Amount, then Amalco (or Funding Sub or one of the other Subsidiaries of Parent, on behalf of Amalco) shall deposit, or cause to be deposited, with the Exchange Agent on behalf of such Selling Shareholders, subject to Sections 2.6(a)(ii) and 2.6(a)(iii), that number of book-entry shares of Parent Common Stock equal to: (A) the Net Aggregate Adjustment Amount minus the amount of cash deposited, or caused to be deposited with the Exchange Agent in respect of the Net Aggregate Adjustment Amount (if any), divided by (B) the Average Price; |
(ii) | the ratio of cash to shares of Parent Common Stock deposited for each former Registered Shareholder shall be proportional to each other former Registered Shareholder (subject to rounding pursuant to this Plan of Arrangement); |
(iii) | the number of shares of Parent Common Stock deposited, or caused to be deposited, with the Exchange Agent in respect of each former Registered Shareholder shall be rounded to the nearest whole share; and |
(iv) | the amount of cash deposited, or caused to be deposited, with the Exchange Agent, in respect of each former Registered Shareholder, if any, shall be rounded to the nearest cent. |
(b) | Upon deposit of cash and/or shares of Parent Common Stock equal in value to the Net Aggregate Adjustment Amount (subject to rounding pursuant to this Plan of Arrangement) with the Exchange Agent pursuant to Section 2.6(a), Amalco shall be fully and completely discharged from its obligation to pay any amount to the Selling Shareholders pursuant to Section 2.12 of the Arrangement Agreement and |
(c) | The Aggregate Adjustment Amount deposited with the Exchange Agent in accordance with Section 2.6(a) shall be delivered to the former Registered Shareholders, without interest, in accordance with the Exchange Agent Agreement and shall be paid to such former Registered Shareholders in accordance with this Plan of Arrangement and the Consideration Spreadsheet. The Aggregate Adjustment Amount shall not be used by the Exchange Agent for any purpose except as provided in this Plan of Arrangement and the Exchange Agent Agreement. |
2.7 | Expiration of Rights |
2.8 | Dividends and Distributions |
2.9 | Transfers Free and Clear |
2.10 | Consideration Spreadsheet |
3.1 | Certificates |
3.2 | Lost Certificates |
4.1 | Dissent Rights |
(a) | Each registered Company Shareholder (as of the record date of the Special Meeting) may exercise rights of dissent with respect to his, her or its Company Shares pursuant to and in the manner set forth in section 185 of the Act as modified by the Interim Order and this Section 4.1 (the “Dissent Rights”); provided that, notwithstanding subsection 185(6) of the Act, a notice of dissent is received by the Company no later than 5:00 p.m. (Toronto time) on the Business Day immediately prior to the date of the Special Meeting and otherwise complies with section 185 of the Act. |
(b) | Dissenting Shareholders shall be deemed to have transferred their respective Company Common Shares (including Company Common Shares issued upon conversion of Company Preferred Shares pursuant to Section 2.2(b)) for which |
(i) | are ultimately determined to be entitled to be paid fair value for their respective Company Shares (including Company Common Shares issued upon conversion of Company Preferred Shares pursuant to Section 2.2(b)) shall be entitled to a payment of cash equal to such fair value (including, for greater certainty, with respect to the Company Preferred Shares converted into Common Shares pursuant to Section 2.2(b), the fair value of such Company Shares calculated in accordance with section 185 of the Act as modified by the Interim Order), and will not be entitled to any other payment or consideration, including any payment that would be payable under the Arrangement in respect of Company Preferred Shares or Company Common Shares, as the case may be, had such Dissenting Shareholders not exercised their Dissent Rights, and upon payment of such fair value to a Dissenting Shareholder, all debt claims of such Dissenting Shareholder pursuant to Section 2.2(e) shall be, and shall be deemed, discharged and satisfied in full; or |
(ii) | are ultimately determined not to be entitled, for any reason, to be paid fair value for their respective Company Shares (including Company Common Shares issued upon conversion of Company Preferred Shares pursuant to Section 2.2(b)) shall be deemed to have participated in the Arrangement, as at the Closing Time, on the same basis as a non-Dissenting Shareholder and shall receive cash and that number of shares of Parent Common Stock in respect of his, her or its Company Shares, as the case may be, on the basis set forth in Article 2. |
(c) | In no case shall any Person set forth in Section 2.1 be required to recognize following the completion of the step set out in Section 2.2(e) a Dissenting Shareholder as a holder of Company Common Shares in respect of which Dissent Rights have been validly exercised. |
(d) | In addition to any other restriction under section 185 of the Act, (i) holders of Company Options; (ii) holders of Company Warrants; and (iii) Company Shareholders who vote in favour of the Arrangement Resolution, shall not be entitled to exercise Dissent Rights. |
5.1 | Paramountcy |
5.2 | Amendment |
(a) | Subject to Sections 5.2(c) and 5.2(d), Parent and the Company reserve the right to amend, modify and/or supplement this Plan of Arrangement at any time and from time to time prior to the time at which the Articles of Arrangement are filed with the Director, provided that any such amendment, modification and/or supplement must be contained in a written document which is: (i) agreed to in writing by Parent, the Company and the Securityholder Representative; (ii) filed with the Court and, if made following the Special Meeting (or following approval of the Arrangement Resolution by written resolution executed by all of the Company Shareholders in lieu of the Special Meeting), approved by the Court subject to such conditions as the Court may impose; and (iii) if so required by the Court, communicated to the Company Shareholders in the manner as required by the Court. |
(b) | Any amendment, modification and/or supplement to this Plan of Arrangement may be proposed by the Company or Parent at any time: (i) prior to or at the Special Meeting; or (ii) prior to obtaining approval of the Arrangement Resolution by written resolution executed by all of the Company Securityholders in lieu of the Special Meeting (provided that the Company and Parent and the Securityholder Representative shall have consented thereto in writing), with or without any prior notice or communication, and if so proposed and accepted by the Persons voting at the Special Meeting or by way of written resolution executed by all of the Company Shareholders in lieu of the Special Meeting (other than as may be required under the Interim Order), shall become part of this Plan of Arrangement for all purposes. |
(c) | Any amendment, modification and/or supplement to this Plan of Arrangement that is approved by the Court following the Special Meeting (or following approval of the Arrangement Resolution by written resolution executed by all of the Company Shareholders in lieu of the Special Meeting) shall be effective only if: (i) it is agreed to by Parent, the Company and the Securityholder Representative; (ii) it is filed with the Court (other than amendments contemplated in Section 5.2(d), which shall not require such filing), and (iii) if required by the Court, it is consented to by the Company Shareholders voting in the manner directed by the Court. |
(d) | Any amendment, modification and/or supplement to this Plan of Arrangement may be made by Amalco unilaterally after the time at which the Articles of Arrangement are filed with the Director without the approval of former Company |
5.3 | Further Assurances |
5.4 | Withholding Rights |