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FLYHT Aerospace Solutions Ltd. M&A Activity 2024
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M&A Activity
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Innovation, Science and Economic Development Canada
Corporation Canada
Innovation, Sciences et Développement économique Canada
Corporations Canada
Certificate of Arrangement
Canada Business Corporations Act
Certified d'arrangement
Loi canadienne sur les sociétés par actions
FLYHT AEROSPACE SOLUTIONS LTD.
414484-8
Corporate name(s) of CBCA applicants / Dénomination(s) sociale(s) de la ou des sociétés LCSA requérantes
Corporation number(s) / Numéro(s) de la ou des sociétés
I HEREBY CERTIFY that the arrangement set out in the attached articles of arrangement has been effected under section 192 of the Canada Business Corporations Act.
JE CERTIFIE que l'arrangement mentionné dans les clauses d'arrangement annexées a pris effet en vertu de l'article 192 de la Loi canadienne sur les sociétés par actions.
Hantz Prosper
Director / Directeur
2024-12-20
Date of Arrangement (YYYY-MM-DD)
Date de l'arrangement (AAAA-MM-JJ)
Canada
Innovation, Science and Economic Development Canada
Corporation Canada
Innovation, Sciences et Développement économique Canada
Corporation Canada
Canada Business Corporations Act (CBCA)
FORM 14.1
ARTICLES OF ARRANGEMENT
(Section 192)
| 1- Name of the applicant corporation(s) | Corporation number |
|---|---|
| FLYHT AEROSPACE SOLUTIONS LTD. | 414484-8 |
| 2 - Name of the corporation(s) the articles of which are amended, if applicable | Corporation number |
| N/A | |
| 3 - Name of the corporation(s) created by amalgamation, if applicable | Corporation number |
| N/A | |
| 4 - Name of the dissolved corporation(s), if applicable | Corporation number |
| N/A | |
| 5 - Name of the other bodies corporate involved, if applicable | Corporation number or jurisdiction |
| Firan Technology Group Corporation | 418860-8 |
| 6 - In accordance with the order approving the arrangement, the plan of arrangement attached hereto, involving the above named body(ies) corporate, is hereby effected. | |
| In accordance with the plan of arrangement, | |
| ☐ a. the articles of the corporation(s) indicated in item 2, are amended. | |
| If the amendment includes a name change, indicate the change below: |
☐ b. the following bodies corporate and/or corporations are amalgamated (for CBCA corporations include the corporation number):
☐ c. the corporation(s) indicated in item 4 is(are) liquidated and dissolved: | |
| 7 - I hereby certify that I am a director or an authorized officer of one of the applicant corporations.
Signature: Qianna Dorlan
Print name: ALANA FORBES, CFO | |
| Note: Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both (subsection 250(1) of the CBCA). | |
ISED-ISDE 3189E (2020/01) Page 1 of 2
December 20, 2024
Canada
CERTIFIED. Wheaton by the Court Clerk as a true copy of the document digitally filed on Dec 18, 2024
COURT FILE NUMBER 2401-15328
COURT COURT OF KING'S BENCH OF ALBERTA
JUDICIAL CENTRE Calgary
MATTER IN THE MATTER OF SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, RSC 1985, c C-44, AS AMENDED AND IN THE MATTER OF A PROPOSED PLAN OF ARRANGEMENT INVOLVING FLYHT AEROSPACE SOLUTIONS LTD., FIRAN TECHNOLOGY GROUP CORPORATION, and the HOLDERS OF COMMON SHARES OF FLYHT AEROSPACE SOLUTIONS LTD.
APPLICANT FLYHT AEROSPACE SOLUTIONS LTD.
RESPONDENT Not Applicable
DOCUMENT FINAL ORDER
ADDRESS FOR SERVICE AND CONTACT
INFORMATION OF PARTY FILING THIS DOCUMENT
TingleMerrett LLP
1250, 639 – 5th Avenue SW
Calgary, AB T2P 0M9
Lawyer: W. E. Brett Code, KC / Amy M. Cooper
Telephone: (403) 813-1503 / (403) 410-6557
Fax: (403) 571-8008
Email: [email protected] / [email protected]
File No. 3389.036
DATE ON WHICH ORDER WAS PRONOUNCED: December 18, 2024
LOCATION OF HEARING: Calgary Courts Centre, Calgary, Alberta
NAME OF JUSTICE WHO GRANTED THIS ORDER: Justice Paul R. Jeffrey
UPON THE Originating Application (the "Originating Application") of FLYHT Aerospace Solutions Ltd. (the "Applicant") for approval of an arrangement (the "Arrangement") involving FLYHT Aerospace Solutions Ltd., Firan Technology Group Corporation ("FTG" or the "Purchaser") and the holders of common shares of FLYHT Aerospace Solutions Ltd. pursuant to section 192 of the Canada Business Corporations Act, RSC 1985, c. C-44 as amended (the "CBCA")
KB 053 Rev. 2023-03-02
AND UPON reading the Originating Application filed October 31, 2024, the interim Order of this Court granted November 8, 2024, as amended in the Amended Interim Order, filed November 19, 2024 (the November 8, 2024 and November 19, 2024 orders together hereinafter the "Interim Order"), and the affidavits of Alana Forbes, sworn October 31, 2024 and December 16, 2024 and the exhibits referred to therein;
AND UPON being advised that service of notice of this application has been effected in accordance with the Interim Order or as otherwise accepted by the Court;
AND UPON being advised by counsel to the Applicant that no notices of intention to appear have been filed in respect of this application;
AND UPON being advised that the Director appointed under section 260 of the CBCA (the "Director") has been provided notice of this application and that the Director does not consider it necessary to appear;
AND UPON the Court being satisfied that the meeting (the "Meeting") of the securityholders of the Applicant (the "Securityholders") was called and conducted in accordance with the terms of the Interim Order;
AND UPON the Court being satisfied that the Applicant has sought and obtained the approval of the Arrangement by the Securityholders in the manner and by the requisite majority required by the Interim Order;
AND UPON it appearing that the Applicant is not insolvent and that is impracticable to effect the transactions contemplated by the Arrangement under any other provision of the CBCA;
AND UPON the Court being satisfied that the statutory requirements to approve the Arrangement have been fulfilled and that the Arrangement has been put forward in good faith;
AND UPON the Court being satisfied that the terms and conditions of the Arrangement and the procedures relating thereto, are fair and reasonable, substantively and procedurally, to the Securityholders and other affected persons and that the Arrangement ought to be approved;
AND UPON hearing from counsel for the Applicant and counsel for the Purchaser;
IT IS HEREBY ORDERED THAT:
-
The Arrangement proposed by the Applicant, on the terms set forth in Schedule "A" to this order ("Order"), is hereby approved by the Court under Section 192 of the CBCA.
-
The terms and conditions of the Arrangement, and the procedures relating thereto, are fair and reasonable, substantively and procedurally, to the Securityholders and all other affected persons.
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The articles of arrangement in respect of the Arrangement (the "Articles of Arrangement") shall be filed pursuant to Section 192 of the CBCA on such date as the Applicant determines in accordance with the terms of the Arrangement.
KB 053 Rev. 2023-03-02
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Service of notice of this Originating Application, the notice in respect of the Meeting and the Interim Order is hereby deemed good and sufficient service. Service of this Order shall be made on all persons who appeared on this application, either by counsel or in person, and upon the Director in accordance with the Interim Order, but is otherwise dispensed with.
-
The Applicant or the Purchaser may, on notice to such parties as the Court may order, seek leave at any time prior to the filing of the Articles of Arrangement to vary this Order or seek advice and directions as to the implementation of this Order.
KB 053 Rev. 2023-03-02
SCHEDULE "A"
PLAN OF ARRANGEMENT
PLAN OF ARRANGEMENT UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, RSC 1985, c. C-44, as amended
KB 053 Rev. 2023-03-02
PLAN OF ARRANGEMENT UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT
ARTICLE 1 INTERPRETATION
1.1 Definitions
Unless indicated otherwise, where used in this Plan of Arrangement, capitalized terms used but not defined shall have the meanings specified in the Arrangement Agreement and the following terms shall have the following meanings (and grammatical variations of such terms shall have corresponding meanings):
"All Cash Consideration" means, subject to adjustment under Section 2.13 of the Arrangement Agreement and to pro-ration under Section 3.3, §0.3379 in cash per Company Share.
"All Share Consideration" means, subject to adjustment under Section 2.13 of the Arrangement Agreement and to pro-ration under Section 3.4, 0.0495 of a Purchaser Share per Company Share.
"Arrangement" means the arrangement under Section 192 of the CBCA in accordance with the terms and subject to the conditions set out in this Plan of Arrangement, subject to any amendments or variations to this Plan of Arrangement made in accordance with its terms, the terms of the Arrangement Agreement or made at the direction of the Court in the Final Order with the prior written consent of the Company and the Purchaser, each acting reasonably.
"Arrangement Agreement" means the arrangement agreement dated October 21, 2024 between the Purchaser and the Company.
"Arrangement Resolution" means the special resolution approving this Plan of Arrangement to be considered at the Company Meeting, substantially in the form of Schedule B to the Arrangement Agreement.
"Articles of Arrangement" means the articles of arrangement of the Company in respect of the Arrangement required by the CBCA to be sent to the Director after the Final Order is made, which shall include this Plan of Arrangement and otherwise be in a form and content satisfactory to the Company and the Purchaser, each acting reasonably.
"Business Day" means any day of the year, other than a Saturday, Sunday or any day on which major banks closed for business in Calgary, Alberta or Toronto, Ontario.
"Cash Adjustment Factor" means a number, rounded to six decimal places, equal to one minus the Share Pro-Ration Factor.
"Cash Consideration" means, subject to adjustment under Section 2.13 of the Arrangement Agreement, §0.1103 in cash per Company Share.
"Cash Electing Shareholder" means a Company Shareholder that has validly elected to receive the All Cash Consideration in accordance with Section 3.2(a).
"Cash Election" has the meaning specified in Section 3.2(a).
"Cash Election Share" means each Company Share in respect of which a Company Shareholder has made a valid Cash Election in accordance with Section 3.2(a).
"Cash Pro-Ration Factor" means the fraction, rounded to six decimal places, the numerator of which is the Maximum Cash Consideration and the denominator of which is the Total Elected Cash Consideration.
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"CBCA" means the Canada Business Corporations Act.
"Certificate of Arrangement" means the certificate of arrangement giving effect to the Arrangement issued by the Director pursuant to Subsection 192(7) of the CBCA in respect of the Articles of Arrangement.
"Combination Consideration" means the Cash Consideration to be paid by the Purchaser and the Share Consideration to be issued by the Purchaser.
"Company" means FLYHT Aerospace Solutions Ltd., a corporation incorporated under the federal laws of Canada.
"Company Meeting" means the special meeting of the Company Shareholders, including any adjournment or postponement thereof, to be called and held in accordance with the Interim Order for the purpose of considering and, if thought fit, approving the Arrangement Resolution.
"Company Option Plan" means the stock option plan of the Company that was last approved by Company Shareholders on May 11, 2023.
"Company Options" has the meaning ascribed thereto in the Arrangement Agreement.
"Company Share Reference Price" means the volume-weighted average trading price of the Company Shares on the TSX Venture Exchange for the five trading days immediately preceding the Effective Date exceeds the Exercise Price.
"Company Shareholder" means a holder of one or more Company Shares.
"Company Shares" means common shares in the capital of the Company.
"Consideration" means, subject to proration, the Cash Consideration, the Share Consideration and/or the Combination Consideration, as set out in this Plan of Arrangement;
"Consideration Shares" means the Purchaser Shares to be issued to Company Shareholders as part of the Consideration pursuant to the Arrangement.
"Court" means the Court of King's Bench of Alberta.
"Depositary" means Odyssey Trust Company Company or such other Person as may be appointed as depositary for the Arrangement, in each case with the prior written approval of the Purchaser.
"Director" means the Director appointed pursuant to Section 260 of the CBCA.
"Dissent Rights" has the meaning ascribed thereto in Section 4.1.
"Dissenting Company Shareholder" means a registered Company Shareholder who has validly exercised its Dissent Rights in strict compliance with Article 4 and has not withdrawn or been deemed to have withdrawn such exercise of Dissent Rights.
"Effective Date" means the date shown on the Certificate of Arrangement.
"Effective Time" means 12:01 a.m. (Calgary time) on the Effective Date.
"Election Deadline" means 5:00 p.m. (Calgary time) two Business Days prior to the Company Meeting;
"Eligible Holder" means a Company Shareholder immediately prior to the Effective Time (other than a Dissenting Company Shareholder) who is (a) a resident of Canada for the purposes of the Tax Act and any
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applicable income tax treaty, holds Company Shares as capital property and is not exempt from tax under Part 1 of the Tax Act, or (b) a partnership if one or more members of the partnership is described in (a).
"Exercise Price" means, in respect of a Company Option, the exercise price thereof.
"Final Order" means the final order of the Court in a form acceptable to the Company and the Purchaser, each acting reasonably, approving the Arrangement under Section 192 of the CBCA, as such order may be amended by the Court (with the consent of both the Company and the Purchaser, each acting reasonably) at any time prior to the Effective Time or, if appealed, then, unless such appeal is withdrawn or denied, as affirmed or as amended on appeal (provided that any such amendment is acceptable to both the Company and the Purchaser, each acting reasonably).
"Governmental Authority" means (a) any multinational, federal, provincial, territorial, state, regional, municipal, local or other government or governmental body and any division, agent, official, agency, commission, board or authority of any government, governmental body, quasi-governmental or private body exercising any statutory, regulatory, expropriation or taxing authority under the authority of any of the foregoing, (b) any domestic, foreign or international judicial, quasi-judicial or administrative court, tribunal, commission, board, panel or arbitrator acting under the authority of any of the foregoing, and (c) any stock exchange, including the TSX and TSX-V.
"Interim Order" means the interim order of the Court pursuant to Section 192 of the CBCA, in form and substance acceptable to both the Company and the Purchaser, each acting reasonably, providing for, among other things, the calling and holding of the Company Meeting, as such order may be amended, modified, supplemented or varied by the Court (provided that any such amendment, modification, supplement or variation is acceptable to both the Company and the Purchaser, each acting reasonably).
"Laws" means all laws, statutes, codes, ordinances (including zoning), decrees, rules, regulations, by-laws, notices, judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, injunctions, orders, decisions, settlements, writs, assessments, arbitration awards, rulings, determinations or awards, decrees or other requirements of any Governmental Authority having the force of law and any legal requirements arising under the common law or principles of law or equity and the term "applicable" with respect to such Laws and, in the context that refers to any person, means such Laws as are applicable at the relevant time or times to such person or its business, undertaking, property or securities and emanate from a Governmental Authority having jurisdiction over such person or its business, undertaking, property or securities.
"Letter of Transmittal and Election Form" means the letter of transmittal and election form sent to the Company Shareholders for use in connection with the Arrangement.
"Liens" means any pledge, claim, lien, charge, option, hypothec, mortgage, security interest, restriction, adverse right, prior assignment, lease, sublease, royalty, levy, right to possession or any other encumbrance, easement, license, right of first refusal, covenant, voting trust or agreement, transfer restriction under any shareholder or similar agreement, right or restriction of any kind or nature whatsoever, whether contingent or absolute, direct or indirect, or any agreement, option, right or privilege (whether by Law, contract or otherwise) capable of becoming any of the foregoing.
"Maximum Cash Consideration" has the meaning specified in Section 3.3(a).
"Maximum Share Consideration" has the meaning specified in Section 3.4(a).
"Parties" means the Purchaser and the Company and "Party" means either one of them.
"Person" includes an individual, sole proprietorship, corporation, body corporate, incorporated or unincorporated association, syndicate or organization, partnership, limited partnership, limited liability company, unlimited liability company, joint venture, joint stock company, trust, natural person in his or her
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capacity as trustee, executor, administrator or other legal representative, a government or Governmental Authority or other entity, whether or not having legal status.
"Plan of Arrangement" means this plan of arrangement proposed under Section 192 of the CBCA, as amended, modified or supplemented from time to time in accordance with the Arrangement Agreement and Article 6 of the Plan of Arrangement or at the direction of the Court in the Final Order, with the prior written consent of the Company and the Purchaser, each acting reasonably.
"Purchaser" means Firan Technology Group Corporation, a corporation existing under the federal laws of Canada.
"Purchaser Share Reference Price" means $6.83.
"Purchaser Shares" means common shares in the capital of the Purchaser.
"Share Adjustment Factor" means a number, rounded to six decimal places, equal to one minus the Cash Pro-Ration Factor.
"Share Consideration" means, subject to adjustment under section 2.13 of the Arrangement Agreement, 0.0333 of a Purchaser Share per Company Share.
"Share Electing Shareholder" means a Company Shareholder that has validly elected to receive the All Share Consideration in accordance with Section 3.2(b).
"Share Election" has the meaning specified in Section 3.2(b).
"Share Election Share" means each Company Share in respect of which a Company Shareholder has made a valid Share Election in accordance with Section 3.2(b).
"Share Pro-Ration Factor" means the fraction, rounded to six decimal places, the numerator of which is the Maximum Share Consideration and the denominator of which is the Total Elected Share Consideration.
"Tax Act" means the Income Tax Act (Canada), as amended, and the regulations promulgated thereunder.
"Total Elected Cash Consideration" has the meaning attributed to that term in Section 3.3(b).
"Total Elected Share Consideration" has the meaning attributed to that term in Section 3.4(b).
1.2 Certain Rules of Interpretation
In this Plan of Arrangement, unless otherwise specified:
(a) Headings, etc. The division of this Plan of Arrangement into Articles and Sections and the insertion of headings are for convenient reference only and do not affect the construction or interpretation of this Plan of Arrangement;
(b) Currency. All references to dollars or to $ are references to Canadian dollars.
(c) Gender and Number. Any reference to gender includes all genders. Words importing the singular number include the plural and vice versa.
(d) Certain Phrases and References, etc. The words (i) "including", "includes" and "include" mean "including (or includes or include) without limitation," (ii) "the aggregate of", "the total of", "the sum of", or a phrase of similar meaning means "the aggregate (or total or sum), without duplication, of," and (iii) unless stated otherwise, "Article" and "Section", followed
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by a number or letter mean and refer to the specified Article or Section of this Plan of Arrangement. The terms “hereof”, “herein” and similar expressions refer to this Plan of Arrangement (as it may be amended, modified or supplemented from time to time) and not to any particular article, section or other portion hereof and include any instrument supplementary or ancillary hereto.
(e) Statutory and Agreement References. Except as otherwise provided in this Plan of Arrangement, any reference in this Plan of Arrangement to a statute refers to such statute and all rules and regulations made under it as they may have been or may from time to time be amended, re-enacted or replaced, and any reference in this Plan of Arrangement to the Arrangement Agreement or any other agreement or document includes, and is a reference to, the Arrangement Agreement or such other agreement or document as it may have been, or may from time to time be, amended, restated or replaced and includes all schedules, annexes, appendices and other attachments to it.
(f) Computation of Time. If any action may be taken within, or any right or obligation is to expire at the end of, a period of days under this Plan of Arrangement, then the first day of the period is not counted, but the day of its expiry is counted. Whenever payments are to be made or an action is to be taken on a day which is not a Business Day, such payment will be made or such action will be taken on or not later than the next succeeding Business Day.
(g) Time References. References to time are to local time, Calgary, Alberta.
ARTICLE 2
THE ARRANGEMENT
2.1 Arrangement Agreement
This Plan of Arrangement constitutes an arrangement under Section 192 of the CBCA and is made pursuant, and is subject to the provisions of, the Arrangement Agreement.
2.2 Binding Effect
This Plan of Arrangement and the Arrangement, upon the filing of the Articles of Arrangement and the issuance of the Certificate of Arrangement, will become effective, and be binding on the Purchaser, the Company, all Company Shareholders, all holders of Company Options, the registrar and transfer agent of the Company, the Depositary and all other Persons at and after the Effective Time, in each case without any further act or formality required on the part of any Person, except as expressly provided in this Plan of Arrangement.
ARTICLE 3
The Arrangement
3.1 Arrangement.
Pursuant to the Arrangement, each of the following events shall occur and shall be deemed to occur sequentially as set out below without any further authorization, act or formality, starting immediately following the Effective Time (in each case, unless otherwise specified):
(a) Company Options.
(i) Each Company Option outstanding immediately prior to the Effective Time that has not yet vested in accordance with its terms shall be accelerated so that such Company Option becomes exercisable, notwithstanding the terms of the
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Company Option Plan or any award or similar agreement pursuant to which such Company Option was granted or awarded.
(ii) Each Company Option outstanding immediately prior to the Effective Time and that has not been duly exercised shall, without any further action, authorization or formality by or on behalf of the holder thereof, be deemed to be surrendered by such holder to the Company in exchange for, in respect of each Company Option for which the Company Share Reference Price exceeds the Exercise Price, the right to receive from the Company an amount in cash from the Company, to be paid in accordance with Section 5.1(c), equal to the number of Company Shares for which such Company Option is then exercisable multiplied by the amount by which Company Share Reference Price exceeds the applicable Exercise Price in respect of such Company Option, less any applicable withholdings pursuant to Section 5.1(c), and such Company Option shall immediately be cancelled and, following such payment, all of the Company's obligations with respect to such Company Option shall be deemed to be fully satisfied.
(iii) For greater certainty, where the Exercise Price of any such Company Option is greater than or equal to the Company Share Reference Price, neither the Company nor the Purchaser shall be obligated to pay the holder of such Company Option the Consideration or any other amount in respect of such Company Option, and such Company Option shall be immediately cancelled for no consideration.
(b) Dissenting Company Shareholders. Concurrently with the step in Section 3.1(a), each Company Share held by a Dissenting Company Shareholder in respect of which Dissent Rights have been validly exercised and not withdrawn shall be deemed to have been transferred by such Dissenting Company Shareholder without any further action, authorization or formality by or on behalf of the holder thereof to the Purchaser (free and clear of any Liens) in consideration for the right to receive an amount determined any payable in accordance with Section 4.1(b), and:
(i) such Dissenting Company Shareholder shall cease to be the holder of such Company Share and to have any rights as a Company Shareholder, other than the right to receive an amount determined and payable in accordance with Section 4.1(b);
(ii) such Dissenting Company Shareholder's name shall be removed from the register of holders of Company Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be recorded in the register of holders of Company Shares maintained by or on behalf of the Company as the holder of the Company Shares so transferred, and shall be deemed to be the legal and beneficial owner thereof.
(c) Cash Election Shares. Each outstanding Cash Election Share (other than those held by Dissenting Company Shareholders in respect of which Dissent Rights have been validly exercised and not withdrawn) shall be transferred without any further action, authorization or formality by or on behalf of the holder thereof to the Purchaser (free and clear of any Liens) in exchange for the All Cash Consideration, less any withholdings required in accordance with Section 5.3, and;
(i) the holder of each such Company Share shall cease to be the holder thereof and to have any rights as a Company Shareholder, other than the right to be paid the All Cash Consideration in accordance with this Plan of Arrangement;
(ii) such holder's name shall be removed from the register of holders of Company Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be recorded in the register of holders of Company Shares maintained by or on behalf of the Company as the holder of the Company Shares so transferred, and shall be deemed to be the legal and beneficial owner thereof, such that following the transactions contemplated by Section 3.1(b) and this Section 3.1(c), the Purchaser shall be the legal and beneficial owner of 100% of such Company Shares.
(d) Share Election Shares. Each outstanding Share Election Share (other than those held by Dissenting Company Shareholders in respect of which Dissent Rights have been validly exercised and not withdrawn) shall be transferred without any further action, authorization or formality by or on behalf of the holder thereof to the Purchaser (free and clear of any Liens) in exchange for the All Share Consideration, less any withholdings required in accordance with Section 5.3, and;
(i) the holder of each such Company Share shall cease to be the holder thereof and to have any rights as a Company Shareholder, other than the right to be paid the All Share Consideration in accordance with this Plan of Arrangement;
(ii) such holder's name shall be removed from the register of holders of Company Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be recorded in the register of holders of Company Shares maintained by or on behalf of the Company as the holder of the Company Shares so transferred, and shall be deemed to be the legal and beneficial owner thereof, such that following the transactions contemplated by Section 3.1(b) and this Section 3.1(d), the Purchaser shall be the legal and beneficial owner of 100% of such Company Shares.
(e) Other Company Shares. Each outstanding Company Share (other than those held by Dissenting Company Shareholders in respect of which Dissent Rights have been validly exercised and not withdrawn and other than Cash Election Shares and Share Election Shares) shall be transferred without any further action, authorization or formality by or on behalf of the holder thereof to the Purchaser (free and clear of any Liens) in exchange for the Combination Consideration, less any withholdings required in accordance with Section 5.3, and;
(i) the holder of each such Company Share shall cease to be the holder thereof and to have any rights as a Company Shareholder, other than the right to be paid the Combination Consideration in accordance with this Plan of Arrangement;
(ii) such holder's name shall be removed from the register of holders of Company Shares maintained by or on behalf of the Company; and
(iii) the Purchaser shall be recorded in the register of holders of Company Shares maintained by or on behalf of the Company as the holder of the Company Shares so transferred, and shall be deemed to be the legal and beneficial owner thereof, such that following the transactions contemplated by Section 3.1(b) and this Section 3.1(e), the Purchaser shall be the legal and beneficial owner of 100% of such Company Shares.
3.2 Election Mechanics
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With respect to the exchange of Company Shares effected pursuant to Section 3.1:
(a) each Company Shareholder who has not exercised Dissent Rights may elect to receive the All Cash Consideration in respect of each Company Share held by such Company Shareholder (such election being a “Cash Election”), with such All Cash Consideration subject to proration in accordance with Section 3.3;
(b) each Company Shareholder who has not exercised Dissent Rights may elect to receive the All Share Consideration in respect of each Company Share held by such Company Shareholder (such election being a “Share Election”), with such All Share Consideration subject to proration in accordance with Section 3.4;
(c) in order to make the election provided for in Section 3.2(a) or 3.2(b), a Company Shareholder must deposit with the Depositary, prior to the Election Deadline, a duly completed Letter of Transmittal and Election Form indicating such Company Shareholder’s election, which election shall be irrevocable and may not be withdrawn, together with any certificates representing the Company Shares held by such Company Shareholder; and
(d) for the avoidance of doubt, any Company Shareholder who (i) does not make a valid Cash Election or a valid Share Election prior to the Election Deadline in accordance with this Section 3.2, or (ii) exercises Dissent Rights but, for any reason, is not ultimately determined to be entitled to the fair value of his, her or its Company Shares in accordance with Article 4 shall, in each case, be deemed to have transferred each of his, her or its Company Shares to the Purchaser in exchange for the Combination Consideration pursuant to Section 3.1(e).
3.3 Cash Proration
Notwithstanding Section 3.2 or any other provision herein to the contrary:
(a) the maximum aggregate amount of cash consideration to be paid to Cash Electing Shareholders pursuant to Section 3.1(c) (the “Maximum Cash Consideration”) shall be the product of (i) the Cash Consideration and (ii) the number of Company Shares (excluding Company Shares in respect of which Dissent Rights have been validly exercised and Company Shares for which neither a Cash Election nor a Share Election has been made) that are issued and outstanding immediately prior to the Effective Time; and
(b) in the event that the aggregate amount of All Cash Consideration that would otherwise be payable to Cash Electing Shareholders pursuant to Section 3.1(c) but for the application of this Section 3.3 (the “Total Elected Cash Consideration”) exceeds the Maximum Cash Consideration, then:
(i) the portion of the consideration in respect of each Company Share transferred to the Purchaser pursuant to Section 3.1(c) to be satisfied in cash shall be determined by multiplying the All Cash Consideration by the Cash Pro-Ration Factor; and
(ii) the balance of the consideration in respect of each Company Share transferred to the Purchaser pursuant to Section 3.1(c) to be satisfied by the issuance of that number of Purchaser Shares which is determined by multiplying the All Share Consideration by the Share Adjustment Factor.
3.4 Share Proration
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Notwithstanding Section 3.2 or any other provision herein to the contrary:
(a) the maximum aggregate number of Purchaser Shares to be paid to Share Electing Shareholders pursuant to Section 3.1(d) (the "Maximum Share Consideration") shall be the product of (i) the Share Consideration; and (ii) the number of Company Shares (excluding Company Shares in respect of which Dissent Rights have been validly exercised and Company Shares for which neither a Cash Election nor a Share Election has been made) that are issued and outstanding immediately prior to the Effective Time; and
(b) in the event that the aggregate amount of All Share Consideration that would otherwise be payable to Share Electing Shareholders pursuant to Section 3.1(d) but for the application of this Section 3.4 (the "Total Elected Share Consideration") exceeds the Maximum Share Consideration, then:
(i) the portion of the consideration in respect of each Company Share transferred to the Purchaser pursuant to Section 3.1(d) to be satisfied by the issuance of Purchaser Shares shall be determined by multiplying the All Share Consideration by the Share Pro-Ration Factor; and
(ii) the balance of the consideration in respect of each Company Share transferred to Purchaser pursuant to Section 3.1(d) to be satisfied by the payment of cash which is determined by multiplying the All Cash Consideration by the Cash Adjustment Factor.
3.5 Tax Election.
Each beneficial owner of Company Shares who is an Eligible Holder, and who receives Purchaser Shares under the Arrangement shall be entitled to make an income tax election pursuant to subsection 85(1) of the Tax Act, or subsection 85(2) of the Tax Act if such beneficial owner is a partnership (and in each case, where applicable, the analogous provisions of provincial income tax Law), with respect to the transfer of its Company Shares to the Purchaser and the receipt of Consideration in respect thereof by providing two signed copies of the necessary prescribed election form(s) (or equivalent information through an alternative document or platform, at Purchaser's discretion) to the Depositary within sixty (60) days following the Effective Date, duly completed with the details of the number of Company Shares transferred and the applicable agreed amounts for the purposes of such elections. Thereafter, subject to the election forms being correct and complete and complying with the provisions of the Tax Act (and applicable provincial income tax Law), the forms will be signed by Purchaser and returned to such former beneficial owner of Company Shares within sixty (60) days after the receipt thereof by the Depositary for filing with the Canada Revenue Agency (or the applicable provincial taxing authority) by such former beneficial owner. Purchaser will not be responsible for the proper completion of any election form and, except for Purchaser's obligation to return (within sixty (60) days after the receipt thereof by the Depositary) duly completed election forms which are received by the Depositary within sixty (60) days of the Effective Date, Purchaser will not be responsible for any taxes, interest or penalties resulting from the failure by a former beneficial owner of Company Shares to properly complete or file the election forms in the form and manner and within the time prescribed by the Tax Act (or any applicable provincial legislation).
ARTICLE 4
DISSENT RIGHTS
4.1 Dissent Rights.
(a) Registered and beneficial holders of Company Shares as of the record date for the Company Meeting and who are registered Company Shareholders prior to the deadline for exercising dissent rights may exercise dissent rights with respect to all of the Company Shares held by such registered holders ("Dissent Rights") in connection with the
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Arrangement pursuant to and in the manner set forth in Section 190 of the CBCA, as modified by the Interim Order, the Final Order, any other order of the Court and this Section 4.1, 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 no later than 5:00 p.m. (Calgary time) two Business Days immediately preceding the date of the Company Meeting (as it may be adjourned or postponed from time to time).
(b) Each Dissenting Company Shareholder who duly exercises Dissent Rights shall be deemed to have transferred the Company Shares held by such holder to the Purchaser as provided, and as of the time stipulated, in Section 3.1(b) and if such holder is ultimately determined to be:
(i) entitled to be paid fair value for such Company Shares, (i) shall be deemed not to have participated in the transactions in Article 2 (other than Section 3.1(b)), (ii) shall be entitled to be paid the fair value of such Company Shares by the Purchaser, less any applicable withholdings, which fair value, notwithstanding anything to the contrary in the CBCA, shall be determined as of the close of business on the day before the Arrangement Resolution was adopted at the Company Meeting, and (iii) will not be entitled to any other payment or consideration, including any payment or consideration that would be payable under the Arrangement had such holders not exercised their Dissent Rights in respect of such Company Shares; or
(ii) not entitled, for any reason, to be paid the fair value for such Company Shares, shall be deemed to have participated in the Arrangement on the same basis and at the same time as Company Shareholders who have not exercised Dissent Rights in respect of such Company Shares and shall be entitled to receive the Consideration to which Company Shareholders who have not exercised Dissent Rights are entitled under Section 3.1(c) hereof.
4.2 Recognition of Dissenting Shareholders
(1) In no case shall the Company, the Purchaser, the Depositary or any other Person be required to recognize any Dissenting Company Shareholder or any other Person exercising Dissent Rights unless such Person (a) as of the record date for the Company Meeting, is the registered or beneficial holder of those Company Shares in respect of which such rights are sought to be exercised, (b) as of the deadline for exercising Dissent Rights, is the registered holder of those Company Shares in respect of which such rights are sought to be exercised and (c) has strictly complied with the procedures for exercising Dissent Rights and has not withdrawn such dissent prior to the Effective Time.
(2) In no case shall the Company, the Purchaser or any other Person be required to recognize any holder of Company Shares who exercises Dissent Rights as a holder of such Company Shares after the completion of the transfer under Section 3.1(b) and the names of such Dissenting Company Shareholders shall be removed from the registers of holders of Company Shares at the same time as the event described in Section 3.1(b) occurs.
(3) Company Shareholders who withdraw, or are deemed to withdraw, their right to exercise Dissent Rights shall be deemed to have participated in the Arrangement, as of the Effective Time, and shall be entitled to receive the Consideration to which Company Shareholders who have not exercised Dissent Rights are entitled Section 3.1(c) hereof.
(4) In addition to any other restrictions under the Interim Order or Section 190 of the CBCA, none of the following shall be entitled to exercise Dissent Rights: (a) holders of Company Options (in their capacity as holders of Company Options); (b) Company Shareholders who voted or instructed a
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proxyholder to vote Company Shares in favour of the Arrangement Resolution; and (c) any Person who is not a registered holder of Company Shares.
ARTICLE 5 CERTIFICATES AND PAYMENTS
5.1 Delivery of Consideration.
(a) At or prior to the Effective Time, the Purchaser shall deposit with, or cause to be deposited with, the Depositary, for the benefit of each Company Shareholder, the cash, in Canadian dollars, and Purchaser Shares that each such Company Shareholder is entitled to receive pursuant to Section 3.1(c), as applicable, upon the transfer of the Company Shares to Purchaser, plus sufficient funds to satisfy any aggregate cash payment in lieu of fractional Purchaser Shares, which cash and Purchaser Shares shall be held by the Depositary, following the Effective Time, as agent and nominee for such former Company Shareholders for distribution to such former holders in accordance with the provisions of this Article 5.
(b) Upon surrender to the Depositary of a direct registration statement (DRS) advice (a “DRS Advice”) or a certificate which immediately prior to the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 3.1(c), together with a duly completed and executed Letter of Transmittal and Election Form and such additional documents and instruments as the Depositary may reasonably require, any such DRS Advice or certificate so surrendered shall forthwith be cancelled, and the registered holder of the Company Shares that were represented by such surrendered DRS Advice or certificate shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder following the Effective Time a certificate or DRS Advice in respect of the Purchaser Shares and a cheque representing the cash that such holder is entitled to receive pursuant to Section 3.1(c), less any amounts withheld pursuant to Section 5.3.
(c) As soon as practicable after the Effective Time, the Purchaser shall cause the Company to deliver to each former holder of Company Options the cash payment, if any, net of applicable withholdings pursuant to Section 5.3, that such holder is entitled to receive under this Plan of Arrangement, either (i) pursuant to the normal payroll practices and procedures of the Company or (ii) in the event that payment pursuant to the normal payroll practices and procedures of the Company is not practicable for any such holder, by cheque (delivered to the address of such holder of Company Options, as reflected on the register maintained by or on behalf of the Company in respect of the Company Options) or such other means as the Company may elect.
(d) Until surrendered as contemplated by this Section 5.1, each DRS Advice or certificate that immediately prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender the Consideration which the holder is entitled to receive in lieu of such DRS Advice or certificate as contemplated in this Section 5.1, less any amounts withheld pursuant to Section 5.3. Any such DRS Advice or certificate formerly representing Company Shares not duly surrendered on or before the sixth (6th) anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in the Company or the Purchaser. On such date, all cash payments to which such former holder was entitled shall be deemed to have been surrendered to the Purchaser, and shall be paid over by the Depositary to, or as directed by, the Purchaser.
(e) Any payment made by the Depositary (or the Company) in accordance with this Plan of Arrangement that has not been deposited or has been returned to the Depositary (or the Company) or that otherwise remains unclaimed, in each case, on or before the sixth (6th) anniversary of the Effective Time, and any right or claim to payment hereunder that remains outstanding on the sixth (6th) anniversary of the Effective Time shall cease to represent a
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right or claim of any kind or nature and the right of the holder to receive the applicable consideration for the Company Shares and the Company Option in accordance with this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited to the Purchaser or the Company, as applicable, for no consideration.
(f) No holder of Company Shares or Company Options shall be entitled (following the completion of this Plan of Arrangement) to receive any consideration with respect to such Company Shares or Company Options other than the Consideration which such holder is entitled to receive in accordance with this Plan of Arrangement, and no such holder shall be entitled to receive any interest, dividends, premium or other payment in connection therewith. No dividend or other distribution declared or made after the Effective Time with respect to any securities of the Company with a record date on or after the Effective Date shall be delivered to the holder of any unsurrendered certificate which, immediately prior to the Effective Date, represented outstanding Company Shares that were transferred pursuant to Section 3.1.
5.2 Lost Certificates
In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Shares that were transferred pursuant to Section 3.1 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 and who was listed immediately prior to the Effective Time as the registered holder thereof on the register of holders of Company Shares maintained by or on behalf of the Company, the Depositary shall deliver in exchange for such lost, stolen or destroyed certificate, the Consideration which such holder is entitled to receive for such Company Shares under this Plan of Arrangement. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such payment is to be delivered shall, as a condition precedent to the delivery of such payment, give a bond satisfactory to the Purchaser, the Company and the Depositary (each acting reasonably) in such amount as the Purchaser may direct, or otherwise indemnify the Company, the Depositary and the Purchaser in a manner satisfactory to the Company, the Depositary and the Purchaser (each acting reasonably), against any claim that may be made against the Company, the Depositary or the Purchaser with respect to the certificate alleged to have been lost, stolen or destroyed.
5.3 Withholding Rights
Each of the Purchaser, the Company the Depositary or any other Person that makes a payment hereunder shall be entitled to deduct or withhold from any amount otherwise payable under this Plan of Arrangement (including any amounts payable to Company Shareholders exercising Dissent Rights or to former Company Shareholders or holders of Company Options) to any Person, such amounts as the Purchaser, the Company, the Depositary or any other Person determines, acting reasonably, are required to be deducted or withheld with respect to such payment under the Tax Act, or any provision of any Law and shall remit such deduction and withholding amount to the appropriate Governmental Authority. To the extent that amounts are so properly deducted or withheld and remitted to the appropriate Governmental Authority, such deducted or withheld amounts shall be treated for all purposes of this Plan of Arrangement as having been paid to such Person, in respect of which such deduction or withholding and remittance was made.
5.4 Calculations
All aggregate amounts of cash consideration to be received under this Plan of Arrangement will be calculated to the nearest cent ($0.01). All calculations and determinations made in good faith by the Purchaser, the Company, or the Depositary, as applicable, for the purposes of this Plan of Arrangement shall be conclusive, final and binding.
5.5 Fractional Shares
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Notwithstanding anything herein contained, no fractional Purchaser Shares will be issued. In the event that a Company Shareholder would otherwise be entitled to a fractional Purchaser Share hereunder, the number of Purchaser Shares issued to such Company Shareholder shall be rounded down to the next lesser whole number of Purchaser Shares. In calculating such fractional interests, all Purchaser Shares registered in the name of or beneficially held by a Company Shareholder or its nominee shall be aggregated. In lieu of any such fractional Purchaser Share, each Company Shareholder otherwise entitled to a fractional interest in a Purchaser Share will be entitled to receive a cash payment equal to such fractional interest multiplied by the Purchaser Share Reference Price, rounded in accordance with Section 5.4.
5.6 Interest
Under no circumstances shall interest accrue or be paid by the Purchaser, the Company, the Depositary or any other Person to Company Shareholders, holders of Company Options or other Persons depositing DRS Advices or certificates pursuant to this Plan of Arrangement, in each case in respect of Company Shares or Company Options, regardless of any delay in making any payment contemplated hereunder
5.7 No Liens
Any exchange or transfer of securities, deemed or otherwise, in accordance with this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind
5.8 Paramountcy
From and after the Effective Time: (a) this Plan of Arrangement shall take precedence and priority over any and all Company Shares and Company Options issued or outstanding prior to the Effective Time; (b) the rights and obligations of the Company Shareholders or the holders of Company Shares, the Company, the Purchaser, the Depositary, and any registrar or transfer agent or other depositary therefor in relation thereto, shall be solely as provided for in this Plan of Arrangement; and (c) all actions, causes of action, claims or proceedings (actual or contingent and whether or not previously asserted) based on or in any way relating to any securities of the Company, including the Company Shares and the Company Options, shall be deemed to have been settled, compromised, released and determined without liability except as set forth in this Plan of Arrangement.
ARTICLE 6 AMENDMENT AND TERMINATION
6.1 Amendments.
(a) The Company and the Purchaser may amend, modify and/or supplement this Plan of Arrangement at any time and from time to time prior to the Effective Time, provided that each such amendment, modification and/or supplement must (a) be set out in writing, (b) be approved by the Company and the Purchaser, each acting reasonably, (c) be filed with the Court and, if made following the Company Meeting, approved by the Court, and (d) be communicated to the Company Shareholders if and as requested by the Court.
(b) Any amendment, modification or supplement to this Plan of Arrangement may be proposed by the Company or the Purchaser at any time prior to or at the Company Meeting (provided that the Company or the Purchaser, as applicable, shall have consented in writing thereto) with or without any other prior notice or communication to the Company Shareholders, and if so proposed and accepted by the Persons 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.
(c) The Company and the Purchaser may amend, modify and/or supplement this Plan of Arrangement at any time and from time to time after the Company Meeting and prior to the
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Effective Time with the approval of the Court, and, if and as required by the Court, (i) after communication to the Company Shareholders and (ii) with the approval of the Company Shareholders in the manner directed by the Court.
(d) Notwithstanding anything to the contrary contained herein, prior to the Effective Time, the Company and the Purchaser may, and following the Effective Time, the Purchaser may unilaterally, amend, modify and/or supplement this Plan of Arrangement at any time and from time to time without the approval of the Court, the Company Shareholders or any other Persons, provided that each such amendment, modification and/or supplement (a) must concern a matter which, in the reasonable opinion of each of the Company and the Purchaser, is of an administrative nature required to better give effect to the implementation of this Plan of Arrangement, and (b) is not adverse to the economic interests of any Company Shareholders or holders of Company Options or, to the extent the amendment, modification and/or supplement is made following the Effective Time, former Company Shareholders or former holders of Company Options.
6.2 Termination.
This Plan of Arrangement may be withdrawn prior to the Effective Time in accordance with the terms of the Arrangement Agreement.
ARTICLE 7 FURTHER ASSURANCES
7.1 Further Assurances.
Notwithstanding that the transactions and events set out in this Plan of Arrangement shall occur and shall be deemed to occur in the order set out in this Plan of Arrangement without any further act or formality, each of the Company and the Purchaser 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 either of them in order to further document or evidence any of the transactions or events set out herein.
ARTICLE 8 U.S. SECURITIES LAW MATTERS
8.1 U.S. Securities Law Matters.
Notwithstanding any provision herein to the contrary, this Plan of Arrangement will be carried out with the intention that all Purchaser Shares to be issued to Company Shareholders in exchange for their Company Shares pursuant to this Plan of Arrangement, as applicable, will be issued and exchanged in reliance on the exemption from the registration requirements of the U.S. Securities Act as provided by section 3(a)(10) thereof and similar exemption under applicable state securities laws, and pursuant to the terms, conditions and procedures set forth in the Arrangement Agreement.