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Mont Royal Resources — M&A Activity 2025
Oct 30, 2025
48584_rns_2025-10-29_4dbfec8e-8d50-4add-8d6a-f5eea9b27927.pdf
M&A Activity
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AMENDING AGREEMENT
THIS AMENDING AGREEMENT (this “Amending Agreement”) dated the 29th day of July, 2025
BETWEEN:
MONT ROYAL RESOURCES LIMITED, a corporation incorporated under the laws of New South Wales under Australian Company Number 625 237 658, and having an office at Level 8, 2 Bligh Street, Sydney, New South Wales, 2000
(“MRZ”)
-and-
COMMERCE RESOURCES CORP., a corporation incorporated under the laws of the Province of British Columbia and having its registered and records office at 800 – 885 West Georgia Street, Vancouver, British Columbia, V6C 3H1
(“CCE”)
(each, a “Party” and collectively, the “Parties”)
WHEREAS MRZ and CCE are parties to an arrangement agreement dated April 9, 2025 (the “Arrangement Agreement”);
AND WHEREAS MRZ and CCE wish to amend certain terms of the Arrangement Agreement, pursuant to Section 8.3 of the Arrangement Agreement, by their execution and delivery of, and in accordance with the terms of, this Amending Agreement;
NOW THEREFORE THIS AMENDING AGREEMENT WITNESSES THAT in consideration of the mutual covenants contained herein and in the Arrangement Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties hereby agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
Capitalized terms used in this Amending Agreement and not otherwise defined have the meanings ascribed thereto in the Arrangement Agreement.
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1.2 Interpretation
Unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing gender include all genders, “or” is not exclusive and “including” is not limiting, whether or not non-limiting language (such as “without limitation”) is used.
The division of this Amending Agreement into Articles and Sections, and the insertion of headings are for convenience of reference only and shall not affect in any way, the construction or interpretation hereof. Unless the contrary intention appears, references in this Amending Agreement to an Article, Section, subsection or paragraph or both, refer to the Article, Section, subsection or paragraph, respectively, bearing that designation in this Amending Agreement.
ARTICLE 2 AMENDMENTS
2.1 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “CCE Options” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
““CCE Options” means the outstanding options of CCE to purchase CCE Shares issued under the CCE Plan;”
2.2 Amendment to Section 1.1 of the Arrangement Agreement
Section 1.1 of the Arrangement Agreement is hereby amended to include the following addition:
““CCE PSUs” means the outstanding performance share unit awards of CCE to purchase CCE Shares issued under the CCE Plan;”
2.3 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “CCE Securities” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
““CCE Securities” means the CCE Shares, CCE Options, CCE PSUs, CCE Warrants and the CCE Convertible Notes;”
2.4 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “CCE Securityholders” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
““CCE Securityholders” means the CCE Shareholders or holders of CCE Options, CCE PSUs, CCE Convertible Notes and CCE Warrants;”
2.5 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “CCE Voting and Lock-up Agreements” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
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“CCE Voting and Lock-up Agreements” means the voting and support agreements (including all amendments thereto) between MRZ and the CCE Locked-up Shareholders setting forth the terms and conditions upon which they agree to vote their CCE Shares, CCE Options, CCE PSUs and CCE Warrants in favour of the Arrangement Resolution;
2.6 Amendment to Section 1.1 of the Arrangement Agreement
Section 1.1 of the Arrangement Agreement is hereby in its entirety and replaced with the following:
“Consideration” means the pre-MRZ Consolidation MRZ Shares to be issued to the CCE Shareholders pursuant to the Plan of Arrangement, being 2.3271 pre-MRZ Consolidation MRZ Shares for each (one) 1 CCE Share, subject to further adjustments in accordance with Section 2.12 of this Agreement;
2.7 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “Exchange Ratio” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“Exchange Ratio” means 2.3271 MRZ Shares for each CCE Share on a pre-MRZ Consolidation basis;
2.8 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “Final Order” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“Final Order” means the final order of the Court, after being informed of the intention to rely upon the exemption from the registration requirements under section 3(a)(10) of the U.S. Securities Act with respect to the issuance and distribution of the Consideration, the Replacement Options and the Replacement Performance Rights, approving the Arrangement, in form and substance acceptable to both CCE and MRZ, each acting reasonably, made pursuant to Section 291 of the BCBCA, after a hearing upon the procedural and substantive fairness of the terms and conditions of the Arrangement as such order may be affirmed, amended, modified, supplemented or varied by the Court (with the consent of both CCE and MRZ, each acting reasonably) at any time prior to the Effective Date or, if appealed, then, unless such appeal is withdrawn, abandoned or denied, as affirmed or as amended on appeal (provided that any such amendment is acceptable to both CCE and MRZ, each acting reasonably);
2.9 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “Interim Order” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“Interim Order” means the interim order of the Court, after being informed of the intention to rely upon the exemption from the registration requirements under section 3(a)(10) of the U.S. Securities Act with respect to the issuance and distribution of the Consideration, the Replacement Options and the Replacement Performance Rights, to be issued following the application therefor contemplated by Section 2.2 of this Agreement and made pursuant to Section 291 of the BCBCA, providing for, among other things, the calling and holding of the CCE Meeting, as the same may
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be affirmed, amended, modified, supplemented or varied by the Court with the consent of both CCE and MRZ, each acting reasonably;"
2.10 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “Outside Date” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“Outside Date” means May 29, 2026, or such later date as may be agreed to in writing by the Parties;"
2.11 Amendment to Section 1.1 of the Arrangement Agreement
The definition of “Replacement Option” under Section 1.1 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“Replacement Option” means an option to purchase a MRZ Share (subject to the terms and conditions of the option) to be issued by MRZ to former holders of CCE Options on a pre-MRZ Consolidation basis;
2.12 Amendment to Section 1.1 of the Arrangement Agreement
Section 1.1 of the Arrangement Agreement is hereby amended to include the following addition:
“Replacement Performance Right” means a performance right to acquire a MRZ Share (subject to the terms and conditions of the performance right) to be issued by MRZ to former holders of CCE PSUs on a pre-MRZ Consolidation basis;
2.13 Amendment to Section 1.11 of the Arrangement Agreement
Section 1.11 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
2.11 Knowledge
In this Agreement, references to “the knowledge of CCE” means the actual knowledge of Jeremy Robinson, in his capacity as an officer of CCE and not in a personal capacity, after making reasonable inquiries of such person as would reasonably be expected to have actual knowledge of the matters that are the subject of the representations and warranties and references to “the knowledge of MRZ” means the actual knowledge of Peter Ruse and Shaun Menezes, each in their capacity as officers of MRZ and not in a personal capacity, after making reasonable inquiries of such persons as would reasonably be expected to have actual knowledge of the matters that are the subject of the representations and warranties.
2.14 Amendment to Section 2.2 of the Arrangement Agreement
Section 2.2 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
2.2 Interim Order
As soon as reasonably practicable following the date of execution of this Agreement, and in any event no later than November 28, 2025, CCE shall file, proceed with and diligently pursue an
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application to the Court for the Interim Order pursuant to Section 291 of the BCBCA, which shall provide, among other things:
(a) for the class of persons to whom notice is to be provided in respect of the Arrangement and the CCE Meeting and the manner in which such notice is to be provided;
(b) confirmation of the record date for the purpose of determining which CCE Shareholders are entitled to receive notice of, and to vote at, the CCE Meeting;
(c) that the requisite approval for the Arrangement Resolution (the “CCE Shareholder Approval”) shall be:
(i) two thirds of the votes cast on the Arrangement Resolution by the CCE Shareholders present in person or represented by proxy at the CCE Meeting; and
(ii) if, and to the extent required under Securities Laws, a simple majority of the votes cast on such resolution by the CCE Shareholders present in person or represented by proxy at the CCE Meeting excluding for this purpose votes attached to CCE Shares held by persons described in items (a) through (d) of Section 8.1(2) of MI 61 101;
(d) for the grant of Dissent Rights to registered holders of the CCE Shares as contemplated in the Plan of Arrangement;
(e) that the CCE Meeting may be adjourned or postponed from time to time by the management of CCE in accordance with the terms of this Agreement or as otherwise agreed to by the Parties without the need for additional approval of the Court;
(f) that the record date for the CCE Shareholders entitled to receive notice of and to vote at the CCE Meeting will not change in respect of any adjournment(s) or postponement(s) of the CCE Meeting, unless required by Law or with the prior written consent of MRZ;
(g) that the Parties intend to rely upon the Section 3(a)(10) Exemption, subject to and conditioned on the Court’s determination that the Arrangement is substantively and procedurally fair to the CCE Shareholders, with respect to the issuance and distribution of the Consideration pursuant to the Arrangement, to implement the transactions contemplated hereby in respect of the CCE Shareholders;
(h) that each CCE Shareholder and any other affected person shall have the right to appear before the Court at the hearing of the Court to approve the application for the Final Order so long as they enter a response within a specified reasonable time;
(i) that in all other respects, the terms, conditions and restrictions of CCE’s Constating Documents, including quorum requirements and other matters, shall apply in respect of the CCE Meeting;
(j) that the deadline for the submission of proxies by CCE Shareholders for the CCE Meeting shall be 48 hours (excluding Saturdays, Sundays and statutory holidays in Vancouver, British Columbia) prior to the time of the CCE Meeting, subject to waiver by CCE in accordance with the terms of this Agreement;
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(k) for the notice requirements with respect to the presentation of the application to the Court for the Final Order; and
(l) for such other matters as CCE and MRZ may reasonably require, as the case may be, subject to obtaining the prior consent of the other Party, such consent not to be unreasonably conditioned, withheld or delayed.”
2.15 Amendment to Section 2.3(a) of the Arrangement Agreement.
Section 2.3(a) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(a) CCE agrees to convene and conduct the CCE Meeting as soon as practicable following the date hereof, and in any event on or before January 30, 2026 (or such later date as may be agreed to by the Parties in writing), in accordance with the Interim Order, CCE’s Constating Documents and applicable Laws for the purpose of considering the Arrangement Resolution and for any other proper purpose as may be set out in the CCE Circular and agreed to by MRZ, acting reasonably, and not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation of) the CCE Meeting without the prior written consent of MRZ (such consent not to be unreasonably withheld, conditioned or delayed), except;
(i) in the case of an adjournment or postponement, as required for quorum purposes, by Law or by a Governmental Entity;
(ii) in the case of an adjournment or postponement, if legally required by a valid CCE Shareholder action (which action is not solicited or proposed by CCE or the CCE Board and subject to compliance by CCE with Section 7.2); or
(iii) as required or permitted under Section 7.1(d) or Section 7.3(e);”
2.16 Amendment to Section 2.3(k) of the Arrangement Agreement.
Section 2.3(k) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(k) at the reasonable request of MRZ from time to time, provide MRZ with a list of (i) the registered CCE Shareholders, together with their addresses and respective holdings of CCE Shares, (ii) the names, addresses and holdings of all persons having rights issued by CCE to acquire CCE Shares including the holders of CCE Options, CCE PSUs, CCE Convertible Notes and CCE Warrants, and (iii) participants and book-based nominee registrants such as CDS & Co. and CEDE & Co., and non-objecting beneficial owners of CCE Shares, together with their addresses and respective holdings of CCE Shares, all as can be reasonably obtained by CCE using the procedures set forth under Securities Laws. CCE shall from time to time require that its registrar and transfer agent furnish MRZ with such additional information, including updated or additional lists of CCE Shareholders, and lists of securities positions and other assistance as MRZ may reasonably request in order to be able to communicate with respect to the Arrangement with the CCE Shareholders and with such other persons as are entitled to vote on the Arrangement Resolution.”
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2.17 Amendment to Section 2.4(a) of the Arrangement Agreement.
Section 2.4(a) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(a) CCE shall prepare the CCE Circular in compliance with applicable Securities Laws and file the CCE Circular as soon as practicable after obtaining the Interim Order, and in any event on or before December 19, 2025, in all jurisdictions where the same is required to be filed and mail the same as required by the Interim Order and in accordance with all applicable Laws, in all jurisdictions where the same is required, complying in all material respects with all applicable Laws on the date of mailing thereof.”
2.18 Amendment to Section 2.4(c) of the Arrangement Agreement.
Section 2.4(c) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(c) Without limiting the generality of Section 2.4(b), the CCE Circular must include: (i) a summary and a copy of the Fairness Opinion, (ii) a statement that the CCE Special Committee has received the Fairness Opinion and has, after receiving advice from its financial advisors and outside legal counsels, unanimously recommended that the CCE Board approve the Arrangement, (iii) a statement that the CCE Board has received the Fairness Opinion and has, after receiving advice from its financial advisors and outside legal counsels and the unanimous recommendation of the CCE Special Committee, unanimously determined that the Arrangement Resolution is in the best interests of CCE and is fair to the CCE Shareholders and that the CCE Board unanimously recommends that the CCE Shareholders vote in favour of the Arrangement Resolution (the “CCE Board Recommendation”), (iv) a statement that each director and certain officers of CCE has entered into a CCE Voting and Lock-up Agreement pursuant to which such director or officer has agreed to vote all of his or her CCE Shares in favour of the Arrangement Resolution; and (v) a statement that the other CCE Locked-up Shareholders have entered into the CCE Voting and Lock-up Agreements pursuant to which the CCE Locked-up Shareholders have agreed to vote all of their CCE Shares in favour of the Arrangement Resolution.”
2.19 Amendment to Section 2.9 of the Arrangement Agreement.
Section 2.9 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
2.9 Withholding Taxes
MRZ, CCE, the Depositary and their respective agents, as applicable, shall be entitled to deduct and withhold from any Consideration or any other amount payable or otherwise deliverable to any CCE Securityholders or any other person under this Agreement and the Plan of Arrangement (including any payment to CCE Shareholders who have validly exercised their Dissent Rights, and holders of CCE Options, CCE PSUs, CCE Convertible Notes and CCE Warrants) such Taxes or other amounts as MRZ, CCE, the Depositary or their respective agents, as the case may be, may reasonably determine is required to be deducted or withheld with respect to such payment under the Tax Act, the Income Tax Assessment Act, the U.S. Tax Code or any provision of Laws in respect of Taxes. For the purposes hereof, all such deducted or withheld amounts shall be treated as having been
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paid to the person in respect of which such deduction or withholding was made on account of the obligation to make payment to such person hereunder, provided that such deducted or withheld amounts are timely remitted to the appropriate Governmental Entity by or on behalf of MRZ, CCE, the Depositary or their respective agents, as the case may be. To the extent that the amount so required to be deducted or withheld from any payment to a CCE Securityholder exceeds the cash component, if any, of the amount otherwise payable, subject to prior approval of MRZ, any of MRZ, CCE, the Depositary or their respective agents, as the case may be, are hereby authorized to sell or otherwise dispose of such portion of the Consideration or other MRZ securities, as applicable, issuable as is necessary to provide sufficient funds to MRZ, CCE, the Depositary or their respective agents, as the case may be, to enable it to comply with all applicable deduction or withholding requirements, and MRZ, CCE, the Depositary or their respective agents, as the case may be, shall remit the applicable portion of the net proceeds of such sale (after deduction of all fees, commissions or costs in respect of such sale) to the appropriate Governmental Entity and shall remit to such CCE Securityholder, as the case may be, any unapplied balance of the net proceeds of such sale. Any sale will be made in accordance with applicable Laws and at prevailing market prices and none of MRZ, CCE, the Depositary or their respective agents, as the case may be, shall be under any obligation to obtain a particular price, or indemnify any CCE Securityholder in respect of a particular price, for the portion of the Consideration or other MRZ securities, as applicable, so sold.”
2.20 Amendment to Section 2.10 of the Arrangement Agreement
Section 2.10 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
2.10 U.S. Securities Law Matters
The Parties intend that the Arrangement shall be carried out such that the issuance of (i) the MRZ Shares to CCE Shareholders in exchange for the CCE Shares, (ii) the Replacement Options to holders of CCE Options in exchange for the CCE Options and (iii) the Replacement Performance Rights to holders of CCE PSUs in exchange for the CCE PSUs, upon completion of the Arrangement qualifies for the exemption from the registration requirements of the U.S. Securities Act provided by the Section 3(a)(10) Exemption and applicable U.S. state securities laws in reliance upon similar exemptions under applicable U.S. state securities laws. Each Party agrees to act in good faith, consistent with the intent of the Parties and the intended treatment of the Arrangement as set forth in this Section 2.10. In order to ensure the availability of the Section 3(a)(10) Exemption, the Parties agree that the Arrangement will be carried out on the following basis:
(a) the Arrangement will be subject to the approval of the Court;
(b) the Court will be advised as to the intention of the Parties to rely on the Section 3(a)(10) Exemption prior to the Court hearing required to issue the Interim Order;
(c) the Court will have to determine, prior to approval of the Arrangement, the substantive and procedural fairness of the Arrangement to the CCE Shareholders;
(d) the Court will hold a hearing before approving the procedural and substantive fairness of the terms and conditions of the Arrangement;
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(e) the Final Order will expressly state that the Arrangement is approved by the Court as being substantively and procedurally fair to the CCE Shareholders to whom Consideration will be issued, the holders of the CCE Options to whom the Replacement Options will be issued and the holders of the CCE PSUs to whom the Replacement Performance Rights will be issued;
(f) the Parties will ensure that the CCE Circular is sent to CCE Shareholders, and will provide them with (i) adequate notice advising them of their right to attend the Court hearing and providing them with sufficient information necessary for them to exercise that right; and (ii) advice that the Consideration, the Replacement Options and the Replacement Performance Rights issuable pursuant to the Arrangement has not been and will not be registered under the U.S. Securities Act and will be issued and delivered to the CCE Shareholders in reliance on the Section 3(a)(10) Exemption, and that certain restrictions on resale under the securities laws of the United States, including, as applicable, Rule 144 under the U.S. Securities Act, may be applicable with respect to securities issued to affiliates of MRZ;
(g) the Interim Order will specify that each person entitled to receive Consideration, Replacement Options or the Replacement Performance Rights on completion of the Arrangement will have the right to appear before the Court at the Court hearing on the Final Order and in accordance with the requirements of the Section 3(a)(10) Exemption, so long as such person enters an appearance within a reasonable time;
(h) each CCE Shareholder will be advised that the Consideration, the Replacement Options and the Replacement Performance Rights issued pursuant to the Arrangement has not been registered under the U.S. Securities Act and will be issued and delivered to the CCE Shareholders in reliance on the Section 3(a)(10) Exemption; and
(i) the Final Order will include a statement to substantially the following effect: “This Order will serve as a basis of a claim to an exemption, pursuant to Section 3(a)(10) of the United States Securities Act of 1933, as amended, from the registration requirements otherwise imposed by that act, regarding the distribution of securities of MRZ, pursuant to the Plan of Arrangement.”.
2.21 Amendment to Section 2.11 of the Arrangement Agreement.
Section 2.11 of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
2.22 Amendment to Section 5.1(b)(ii) of the Arrangement Agreement.
Section 5.1(b)(ii) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(ii) other than the issue of CCE Securities pursuant to the CCE Financing, issue, sell, pledge, lease, dispose of or encumber, or agree to issue, sell, pledge, lease, dispose
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of or encumber, any securities of or any securities convertible into securities of CCE (other than in connection with the exercise or conversion, in accordance with their respective terms, of outstanding CCE Options, CCE PSUs, CCE Convertible Notes or CCE Warrants) or except as provided for in this Agreement, amend, extend or terminate, or agree to amend, extend or terminate, any of the terms of, or agreements governing, any outstanding securities of CCE or right that is linked in any way to the price of any securities of CCE;"
2.23 Amendment to Section 5.1(b)(xix) of the Arrangement Agreement.
Section 5.1(b)(xix) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(xix) except in connection with the appointment of Mr. Nicholas Holthouse as President and Chief Executive Officer of CCE, enter into or modify any employment, consulting, severance, or similar agreements or arrangements with, or grant any bonuses, salary or fee increases, severance or termination pay to, any officers or directors or, in the case of employees or consultants who are not officers or directors, take any action other than in the ordinary, regular and usual course of business and consistent with past practice with respect to the grant of any bonuses, salary or fee increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date of this Agreement provided, however, that: (A) CCE shall take such action as may be required in order to ensure that the provisions of Section 2.11 are complied with; and (B) CCE will abide by the terms and conditions of any employment agreements and consulting agreements in respect of any person who will no longer be employed or retained by MRZ or CCE, as the case may be, after the Arrangement, including with respect to the payments of any severance amounts or change of control payments, if applicable, or if amendments or revisions are to be made to the terms and conditions of any employment agreements and consulting agreements, such amendments and revisions will be made with the prior written consent of MRZ;”
2.24 Amendment to Section 5.1(b)(xx) of the Arrangement Agreement.
Section 5.1(b)(xx) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(xx) except in connection with the appointment of Mr. Nicholas Holthouse as President and Chief Executive Officer of CCE, hire any new employees or full-time consultants of CCE other than to replace any employee who has voluntarily resigned or has been terminated for poor performance, for just cause or with a serious reason since the date of this Agreement, provided that the terms of the employment, consulting or similar agreement with the new employee or full-time consultant are substantially the same as the employment agreement previously entered into with the employee being replaced, or as set out in the CCE Budget;”
2.25 Amendment to Section 5.4(a) (iv) of the Arrangement Agreement.
Section 5.4(a)(iv) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
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“(iv) ensure that, with effect as and from the Effective Time, Mr. Cameron Henry shall be appointed Non-Executive Chairman and CEO of MRZ and the MRZ Board will be constituted of Messrs. Cameron Henry, Nicholas Holthouse, Jeremy Robinson, Adam Ritchie and Ronnie Beevor, provided all such members of the MRZ Board consent to act as director on the MRZ Board, meet the qualification requirements to serve as a director under the rules and policies of the Exchange and shall be eligible under applicable Law to serve as a director;”
2.26 Amendment to Section 5.5(c) of the Arrangement Agreement.
Section 5.5(c) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(c) it shall use its commercially reasonable efforts to ensure that the Section 3(a)(10) Exemption is available for the issuance of the Consideration to the CCE Shareholders in exchange for their CCE Shares, the Replacement Options to the holders of CCE Options in exchange for their CCE Options and the Replacement Performance Rights to holders of CCE PSUs in exchange for their CCE PSUs pursuant to the Plan of Arrangement.”
2.27 Amendment to Section 5.6(b) of the Arrangement Agreement.
Section 5.6(b) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(b) MRZ shall no later than December 19, 2025 apply to ASX to reinstate the MRZ Shares to official quotation on ASX.”
2.28 Amendment to Section 5.7(b) of the Arrangement Agreement.
Section 5.7(b) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(b) MRZ shall: (i) no later than November 28, 2025 provide and if required, file the MRZ Circular with ASIC and ASX; (ii) no later than November 28, 2025, dispatch its MRZ Meeting Notice in respect of the MRZ Shareholder Approval and call for the MRZ Meeting to occur on or before January 30, 2026, and (iii) on or before November 28, 2025, MRZ shall not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation of) the MRZ Meeting without the prior written consent of CCE, such consent not to be unreasonably conditioned, withheld or delayed, except (i) where MRZ will not have a sufficient number of securities represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the MRZ Meeting, CCE shall have the right to, on one or more occasions, without the prior written consent of CCE, postpone or adjourn the MRZ Meeting for the minimum duration necessary to satisfy the quorum requirement; (ii) as required by Law or by a Governmental Entity; (iii) for an adjournment for the purpose of attempting to obtain the MRZ Shareholder Approval, or (iv) as otherwise permitted by this Agreement;”
2.29 Amendment to Section 5 of the Arrangement Agreement
Section 5 of the Arrangement Agreement is hereby amended to include the following as Section 5.15 to the Arrangement Agreement:
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5.15 MRZ Consolidation
Immediately following completion of the Arrangement, MRZ shall complete the MRZ Consolidation.
2.30 Amendment to Section 6.1(j) of the Arrangement Agreement
Section 6.1(j) of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(j) the distribution of the Consideration, the Replacement Options and the Replacement Performance Rights pursuant to the Arrangement shall be exempt from the registration requirements of the U.S. Securities Act pursuant to Section 3(a)(10) thereof and applicable securities laws of any state of the United States.”
2.31 Amendment to Section 6.3(d) of the Arrangement Agreement
Section 6.3(d) of the Arrangement Agreement is hereby deleted in its entirety.
2.32 Amendment to Schedule “A” – Plan of Arrangement, of the Arrangement Agreement
Schedule A of the Arrangement Agreement is hereby deleted in its entirety and replaced with Schedule “A” attached hereto.
2.33 Amendment to Section 9(a) of Schedule “C” – Representations and Warranties of CCE, of the Arrangement Agreement
Section 9(a) of Schedule C of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
“(a) As of the close of business on the Business Day prior to the date of this Agreement, there were (A) 212,021,555 CCE Shares validly issued and outstanding as fully-paid and non-assessable shares of CCE; (B) outstanding CCE Options providing for the issuance of up to 4,750,000 CCE Shares upon the exercise thereof; (C) outstanding CCE Warrants providing for the issuance of up to 155,022,499 CCE Shares; (D) outstanding CCE PSUs providing for the issuance of up to 15,000,000 CCE Shares; and (E) outstanding CCE Convertible Notes issued pursuant to the CCE Financing. All outstanding CCE Shares have been, and all CCE Shares issuable upon the exercise, vesting, settlement or conversion of rights under CCE Options, CCE Warrants, CCE PSUs and CCE Convertible Notes in accordance with their terms (including, in the case of CCE Options, CCE Warrants, CCE PSUs and CCE Convertible Notes, the receipt by CCE of the exercise price therefor), will be duly authorized in accordance with the respective terms thereof, validly issued, fully paid and non-assessable.”
2.34 Amendment to Section 9(c) of Schedule “C” – Representations and Warranties of CCE, of the Arrangement Agreement
Section 9(c) of Schedule C of the Arrangement Agreement is hereby deleted in its entirety and replaced with the following:
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“(c) Except for CCE Options, CCE PSUs and CCE Warrants referred to in Section 9(a) and other than as disclosed in Section 9(c) of the CCE Disclosure Letter or pursuant to the CCE Financing, (A) there are no existing options, warrants, calls, pre-emptive rights, subscriptions or other rights, restricted share awards, restricted share unit awards, agreements, arrangements, understandings or commitments of any kind relating to the issued or unissued capital stock of, or other equity interests in, CCE obligating CCE to issue, transfer, register or sell or cause to be issued, transferred, registered or sold any shares of capital stock or Voting Debt of, or other equity interest in, CCE or securities convertible into or exchangeable for such shares or equity interests or other securities; (B) there are no outstanding agreements, arrangements, understandings or commitments of CCE to repurchase, redeem or otherwise acquire any CCE Shares or qualify securities for public distribution in Canada or elsewhere, or with respect to the voting or disposition of any securities of CCE (including shareholder or voting trust agreements); (C) there are no outstanding agreements or binding commitments of CCE requiring it to provide any amount of funds or to make any investment (in the form of a loan, capital contribution or otherwise) in any person; and (D) there are no outstanding or authorized share appreciation, phantom share, restricted share units, performance-based awards, profit participation or other similar rights with respect to CCE.”
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Parties
Each of the Parties, acknowledging that the other Party is entering into this Amending Agreement in reliance thereon, hereby represents and warrants that this Amending Agreement has been duly and validly executed and delivered by it and constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject only to any limitation under applicable laws relating to (i) bankruptcy, insolvency, arrangement or creditors’ rights generally, and (ii) the discretion that a court may exercise in the granting of equitable remedies.
ARTICLE 4
GENERAL
4.1 Reference to and Effect on the Arrangement Agreement
This Amending Agreement is an amendment to the Arrangement Agreement. Unless the context of this Amending Agreement otherwise requires, the Arrangement Agreement and this Amending Agreement shall be read together and shall have effect as if the provisions of the Arrangement Agreement and this Amending Agreement were contained in one agreement. Each reference in the Arrangement Agreement to “this Agreement” and each reference to the Arrangement Agreement in any and all other agreements, documents and instruments delivered by the Parties or any other Person in connection with the Arrangement Agreement shall mean and be a reference to the Arrangement Agreement, including all schedules to the Arrangement Agreement, as amended by this Amending Agreement and all further amendments or restatements, as permitted. Except as specifically amended by this Amending Agreement, each of the Parties acknowledges and agrees that the Arrangement Agreement remains in full force and effect, unamended. To the extent that this Amending Agreement shall be deemed to be inconsistent with any terms or conditions of the Arrangement Agreement, the terms of this Amending Agreement shall govern.
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4.2 Further Assurances
The Parties shall, from time to time, do all acts and things and execute and deliver all such further documents and instruments, as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Amending Agreement.
4.3 Severability
If any term or other provision of this Amending Agreement is invalid, illegal or incapable of being enforced by any rule or Law or public policy, all other conditions and provisions of this Amending Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Amending Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
4.4 Enurement
This Amending Agreement is binding upon and shall enure to the benefit of the Parties and their respective successors and permitted assigns.
4.5 Governing Law
This Amending Agreement will be governed by and interpreted and enforced in accordance with the Laws of the Province of British Columbia and the federal Laws of Canada applicable therein. Each Party irrevocably attorns and submits to the exclusive jurisdiction of the British Columbia courts situated in the City of Vancouver and waives objection to the venue of any Proceeding in such court or that such court provides an inconvenient forum.
4.6 Entire Agreement
This Amending Agreement, together with the Arrangement Agreement, constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, between the Parties, or any of them, with respect to the subject matter thereof. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties with respect thereto except as expressly set forth in this Amending Agreement and the Arrangement Agreement.
4.7 Counterparts
This Amending Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The Parties shall be entitled to rely upon delivery of an executed facsimile or similar executed electronic copy of this Amending Agreement, and such facsimile or similar executed electronic copy shall be legally effective to create a valid and binding agreement between the Parties.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF the Parties hereto have executed this Amending Agreement as of the date first written above.
Executed by MONT ROYAL RESOURCES
LIMITED ACN 625 237 658 in accordance
with section 127 of the Corporations Act 2001
(Cth):
/s/ “Peter J. Ruse”
Director
/s/ “Shaun Menezes”
Company Secretary
Peter J. Ruse
Name of Director
Shaun Menezes
Name of Company Secretary
COMMERCE RESOURCES CORP.
By: /s/ “Nicholas Holthouse”
Name: Nicholas Holthouse
Title: President and Chief Executive Officer
[Signature Page to Amending Agreement]
SCHEDULE "A"
PLAN OF ARRANGEMENT
[See Attached]
PLAN OF ARRANGEMENT
UNDER DIVISION 5 OF PART 9 OF THE
BUSINESS CORPORATIONS ACT (BRITISH COLUMBIA)
ARTICLE 1
DEFINITIONS AND 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):
“affiliate” has the meaning given to it in the Securities Act;
“Arrangement” means an arrangement pursuant to the provisions of Division 5 of Part 9 of the BCBCA on 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 the terms of the Arrangement Agreement or Section 5.1 of this Plan of Arrangement or made at the direction of the Court in the Final Order with the prior written consent of the CCE and MRZ, each acting reasonably;
“Arrangement Agreement” means the arrangement agreement dated April 9, 2025, as amended on July 29, 2025 between MRZ and CCE, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof;
“Arrangement Resolution” means the special resolution of the CCE Shareholders approving the Arrangement to be considered at the CCE Meeting, substantially in the form and content of Schedule “B” to the Arrangement Agreement;
“Australian Tax Act” means the Income Tax Assessment Act 1936 (Cth), Income Tax Assessment Act 1997 (Cth) and Taxation Administration Act 1953 (Cth) and the regulations thereunder, as amended from time to time;
“BCBCA” means the Business Corporations Act (British Columbia);
“Business Day” means a day, other than a Saturday or a Sunday, on which the principal commercial banks located in Vancouver, British Columbia and Sydney, Australia are open for the conduct of business;
“CCE” means Commerce Resources Corp.;
“CCE Circular” means the notice of the CCE Meeting and accompanying management information circular, including all schedules, appendices, and exhibits thereto, to be sent to the CCE Shareholders in connection with the CCE Meeting, as amended, supplemented or otherwise modified from time to time;
“CCE Convertible Notes” means the outstanding secured convertible notes of CCE;
“CCE Meeting” means the special meeting of the CCE Shareholders, including any adjournment or postponement thereof, to be called and held in accordance with the Interim Order to consider the Arrangement Resolution and any other matters as may be set out in the CCE Circular and agreed to in writing by MRZ, acting reasonably;
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“CCE Options” means the outstanding options of CCE to purchase CCE Shares issued under the CCE Plan;
“CCE PSUs” means the outstanding performance share unit awards of CCE to purchase CCE Shares issued under the CCE Plan;
“CCE Plan” means the equity incentive plan of CCE, which was most recently approved by CCE Shareholders at the annual and special meeting on May 8, 2024, as amended and supplemented;
“CCE Securities” means the CCE Shares, CCE Options, CCE PSUs, CCE Warrants and the CCE Convertible Notes;
“CCE Shareholders” means the holders of the CCE Shares;
“CCE Shares” means the common shares in the capital of CCE, as constituted immediately prior to the Effective Time;
“CCE Warrants” means the outstanding warrants to purchase CCE Shares issued by CCE;
“Consideration” means the pre-MRZ Consolidation MRZ Shares to be issued to the CCE Shareholders pursuant to the Plan of Arrangement, being 2.3271 pre-MRZ Consolidation MRZ Shares for each (one) 1 CCE Share, subject to further adjustments in accordance with Section 2.12 of this Agreement;
“Court” means the Supreme Court of British Columbia,
“Depositary” means any trust company, bank or financial institution agreed to in writing between the Parties for the purpose of, among other things, exchanging certificates representing CCE Shares for certificates representing the Consideration pursuant to the Arrangement;
“Dissent Rights” shall have the meaning ascribed thereto in Section 4.1;
“Dissenting Shareholder” means a registered holder of CCE Shares that has duly and validly exercised their Dissent Rights and that has not withdrawn or been deemed to have withdrawn such exercise of Dissent Rights and that is ultimately determined to be entitled to be paid the fair value of its CCE Shares;
“DRS” shall have the meaning ascribed thereto in Section 5.2;
“Effective Date” means the date upon which the Arrangement becomes effective pursuant to the Plan of Arrangement;
“Effective Time” means 12:01 a.m. (Vancouver time) on the Effective Date, or such other time as the Parties agree to in writing before the Effective Date;
“Exchange Ratio” means 2.3271 MRZ Shares for each CCE Share on a pre-MRZ Consolidation basis;
“Final Order” means the final order of the Court, after being informed of the intention to rely upon the exemption from the registration requirements under section 3(a)(10) of the U.S. Securities Act with respect to the issuance and distribution of the Consideration, the Replacement Options and the Replacement Performance Rights, approving the Arrangement, in form and substance acceptable to both CCE and MRZ, each acting reasonably, made pursuant to Section 291 of the BCBCA, after a hearing upon the procedural and substantive fairness of the terms and conditions of the Arrangement as such order may be affirmed, amended, modified, supplemented or varied by the Court (with the consent of both CCE and MRZ, each
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acting reasonably) at any time prior to the Effective Date or, if appealed, then, unless such appeal is withdrawn, abandoned or denied, as affirmed or as amended on appeal (provided that any such amendment is acceptable to both CCE and MRZ, each acting reasonably);
“final proscription date” shall have the meaning ascribed thereto Section 5.6;
“Former CCE Shareholders” means the holders of CCE Shares (other than Dissenting Shareholders and MRZ and any of their affiliates) immediately prior to the effective time of the transaction described in Section 3.1(b);
“In-the-Money Amount” means in respect of a Replacement Option at any time, the amount, if any, by which the aggregate fair market value, at that time, of the shares subject to the option exceeds the aggregate exercise price under the option;
“Interim Order” means the interim order of the Court, after being informed of the intention to rely upon the exemption from the registration requirements under section 3(a)(10) of the U.S. Securities Act with respect to the issuance and distribution of the Consideration, the Replacement Options and the Replacement Performance Rights, to be issued following the application therefor contemplated by Section 2.2 of this Agreement and made pursuant to Section 291 of the BCBCA, providing for, among other things, the calling and holding of the CCE Meeting, as the same may be affirmed, amended, modified, supplemented or varied by the Court with the consent of both CCE and MRZ, each acting reasonably;
“MRZ” means Mont Royal Resources Limited, a company existing under the laws of Australia with ACN 625 237 658;
“MRZ Consolidation” the consolidation of the MRZ Shares on the basis of 0.2195 post-consolidation MRZ Shares for each one (1) pre-consolidation MRZ Shares;
“MRZ Share” means a fully paid ordinary share in the capital of MRZ;
“Party” means any of CCE or MRZ as the case may be, and “Parties” means all of them, collectively;
“Plan of Arrangement” means this plan of arrangement and any amendments or variations hereto made in accordance with Section 8.3 of the Arrangement Agreement or Section 6.1 of this Plan of Arrangement or at the direction of the Court and agreed to in writing by both CCE and MRZ, each acting reasonably;
“Replacement Option” means an option to purchase a MRZ Share (subject to the terms and conditions of the option) to be issued by MRZ to former holders of CCE Options on a pre-MRZ Consolidation basis;
“Replacement Performance Right” means a performance right to acquire a MRZ Share (subject to the terms and conditions of the performance right) to be issued by MRZ to former holders of CCE PSUs on a pre-MRZ Consolidation basis;
“Tax” or “Taxes” mean any and all taxes, imposts, levies, withholdings, duties, fees, premiums, assessments and other charges of any kind, however denominated and instalments in respect thereof, including any interest, penalties, fines or other additions that have been, are or will become payable in respect thereof, imposed by any Governmental Entity, including for greater certainty all income or profits taxes (including Canadian federal, provincial and territorial income taxes), payroll and employee withholding taxes, employment taxes, unemployment insurance, disability taxes, social insurance taxes, sales and use taxes, ad valorem taxes, excise taxes, goods and services taxes, harmonized sales taxes, franchise taxes, gross receipts taxes, capital taxes, business license taxes, mining royalties, alternative minimum taxes,
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estimated taxes, abandoned or unclaimed (escheat) taxes, occupation taxes, real and personal property taxes, stamp taxes, environmental taxes, transfer taxes, severance taxes, workers' compensation, Canada and other government pension plan premiums or contributions and other governmental charges, and other obligations of the same or of a similar nature to any of the foregoing, which a Party or any of its subsidiaries is required to pay, withhold or collect, together with any interest, penalties or other additions to tax that may become payable in respect of such taxes, and any interest in respect of such interest, penalties and additions, whether or not disputed.
"Tax Act" means the Income Tax Act (Canada) and the regulations thereunder, as amended from time to time;
"Transmittal Letter" means the letter of transmittal sent to holders of CCE Shareholders for use in connection with the Arrangement;
"U.S. Securities Act" means the United States Securities Act of 1933; and
"U.S. Tax Code" means the United States Internal Revenue Code of 1986.
In addition, words and phrases used herein and defined in the BCBCA and not otherwise defined herein or in the Arrangement Agreement shall have the same meaning herein as in the BCBCA unless the context otherwise requires.
1.2 Interpretation Not Affected by Headings
The division of this Plan of Arrangement into articles, sections, subsections, paragraphs and subparagraphs and the insertion of headings herein are for convenience of reference only and shall not affect the construction or interpretation of this Plan of Arrangement. The terms "this Plan of Arrangement", "hereof", "herein", "hereto", "hereunder" and similar expressions refer to this Plan of Arrangement and not to any particular article, section or other portion thereof and include any instrument supplementary or ancillary hereto. Unless the contrary intention appears, references in this Plan of Arrangement to an Article or Section, by number or letter or both refer to the Article or Section, respectively, bearing that designation in this Plan of Arrangement.
1.3 Number, Gender and persons
In this Plan of Arrangement, unless the context otherwise requires, words importing the singular shall include the plural and vice versa, words importing the use of either gender shall include both genders and neuter and the word person and words importing persons shall include a natural person, firm, trust, partnership, association, corporation, joint venture or government (including any governmental agency, political subdivision or instrumentality thereof) and any other entity or group of persons of any kind or nature whatsoever.
1.4 Date for any Action
If the date on which any action is required or permitted to be taken hereunder is not a Business Day, such action shall be required or permitted to be taken on the next succeeding day which is a Business Day.
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1.5 Statutory References
Any reference in this Plan of Arrangement to a statute includes all rules and regulations made or promulgated thereunder, all amendments to such statute or regulation in force from time to time and any statute or regulation that supplements or supersedes such statute or regulation.
1.6 Currency
Unless otherwise stated, all references herein to amounts of money are expressed in lawful money of Canada.
1.7 Governing Law
This Plan of Arrangement shall be governed, including as to validity, interpretation and effect, by the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
ARTICLE 2 ARRANGEMENT AGREEMENT
2.1 Arrangement Agreement
This Plan of Arrangement constitutes an arrangement under Division 5 of Part 9 of the BCBCA and is made pursuant to, and is subject to the provisions of, the Arrangement Agreement, except in respect of the sequence of the steps comprising the Arrangement, which shall occur in the order set forth herein. If there is any conflict between the provisions of this Plan of Arrangement and the provisions of the Arrangement Agreement regarding the Arrangement, the provisions of this Plan of Arrangement shall govern.
2.2 Binding Effect
This Plan of Arrangement and the Arrangement will become effective, and be binding on CCE, MRZ, all registered and beneficial CCE Securityholders (including Dissenting Shareholders), the registrar and transfer agent of CCE and the Depositary at and after the Effective Time, in each case without any further act or formality required on the part of any person, the part of the Court or the registrar, except as expressly provided in this Plan of Arrangement.
ARTICLE 3 ARRANGEMENT
3.1 Arrangement
Commencing at the Effective Time, the following steps or transactions shall, unless specifically provided otherwise in this Section 3.1, occur and shall be deemed to occur sequentially in the following order without any further authorization, act or formality, in each case at one-minute intervals starting at the Effective Time:
(a) each CCE Share outstanding immediately prior to the Effective Time held by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised shall be deemed to be transferred by the holder thereof, without any further act or formality on its part, free and clear of all liens, claims and encumbrances, to MRZ and MRZ shall thereupon be obliged to pay the amount therefor determined and payable in accordance with Article 4 hereof, and:
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(i) the name of such registered holder shall be removed from the central securities register of CCE as a holder of CCE Shares;
(ii) such Dissenting Shareholders will cease to have any rights as CCE Shareholders other than the right to be paid the fair value for their CCE Shares; and
(iii) MRZ shall be entered in CCE’s central securities register of holders of CCE Shares as the legal and beneficial owner of such CCE Shares, free of all liens, claims and encumbrances;
(b) each CCE Share outstanding immediately prior to the effective time of the transfer under this Section 3.1(b) (other than a CCE Share held immediately before the Effective Time by a Dissenting Shareholder in respect of which Dissent Rights have been validly exercised and a CCE Share held by MRZ or any of their affiliates) shall be deemed to be transferred by the holder thereof, without any further act or formality by such CCE Shareholder, free and clear of all liens, claims and encumbrances, to MRZ in exchange for the Consideration, and MRZ shall be deemed to have directed the Depositary to issue and to deliver to such holder the Consideration to which such holder is entitled pursuant to this Section 3.1(b), and upon such exchange:
(i) each holder of such CCE Shares shall cease to be the holder thereof and to have any rights as a CCE Shareholder other than the right to be paid the Consideration pursuant to this Section 3.1(b) and in accordance with this Plan of Arrangement;
(ii) each Former CCE Shareholder shall be removed from CCE’s central securities register of holders of CCE Shares;
(iii) MRZ shall be entered in CCE’s central securities register of holders of CCE Shares as the legal and beneficial owner of such CCE Shares, free of all liens, claims and encumbrances; and
(iv) each Former CCE Shareholder shall be entered in MRZ’s register of holders of MRZ Shares in respect of MRZ Shares deliverable to such Former CCE Shareholder pursuant to this Section 3.1(b);
(c) concurrently with the transfer in Section 3.1(b), MRZ will issue as consideration for the Consideration issued to CCE Shareholders pursuant to such Section 3.1(b), an equal number of MRZ Common Shares and add to its stated capital an amount equal to the fair market value of the Consideration;
(d) each CCE Option outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action on the part of any holder thereof, notwithstanding the terms of the CCE Plan or any award or similar agreement pursuant to which the CCE Options were granted or awarded, cancelled and exchanged for a Replacement Option to acquire from MRZ, such number of MRZ Shares equal to (1) that number of CCE Shares that were issuable upon exercise of such CCE Option immediately prior to the Effective Time, multiplied by (2) the Exchange Ratio (provided that if the foregoing would result in the issuance of a fraction of a MRZ Share on any particular exercise of Replacement Options in the aggregate, then the number of MRZ Shares otherwise issuable shall be rounded down to the nearest whole number of MRZ Shares), at an exercise price per MRZ Share equal to the quotient determined by dividing (X) the
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exercise price per CCE Share at which such CCE Option was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio (provided that the aggregate exercise price payable on any particular exercise of Replacement Options shall be rounded up to the nearest whole cent); provided that the exercise price of such Replacement Option shall be, and shall be deemed to be, adjusted by the amount, and only to the extent, necessary to ensure that the In-the-Money Amount of such Replacement Option immediately following the exchange does not exceed the In-the-Money Amount (if any) of such CCE Option immediately before the exchange; and
(e) each CCE PSU outstanding immediately prior to the Effective Time (whether vested or unvested) shall, without any further action on the part of any holder thereof, notwithstanding the terms of the CCE Plan or any award or similar agreement pursuant to which the CCE PSUs were granted or awarded, cancelled and exchanged for a Replacement Performance Right to acquire from MRZ, such number of MRZ Shares equal to (1) that number of CCE Shares that were issuable upon exercise of such CCE PSU immediately prior to the Effective Time, multiplied by (2) the Exchange Ratio (provided that if the foregoing would result in the issuance of a fraction of a MRZ Share on any particular exercise of Replacement Performance Rights in the aggregate, then the number of MRZ Shares otherwise issuable shall be rounded down to the nearest whole number of MRZ Shares).
At such time following the completion of those transactions described in the foregoing paragraphs of this Section 3.1, as promptly as possible after all conditions therefor have been met, CCE shall file or cause to be filed the prescribed form of election under the Tax Act with the Canada Revenue Agency electing to cease being a public corporation for the purposes of the Tax Act.
3.2 No Fractional Shares
No fractional MRZ Shares shall be issued to Former CCE Shareholders. Where the aggregate number of MRZ Shares to be issued to a Former CCE Shareholder under the Arrangement would otherwise result in a fraction of a MRZ Share being issuable, the number of MRZ Shares to be issued to such Former CCE Shareholder shall be rounded down to the nearest whole MRZ Share, and such Former CCE Shareholder shall not be entitled to any compensation in respect of such fractional MRZ Share.
3.3 Effect of Arrangement on CCE Warrants and CCE Convertible Notes
As a result of the completion of the steps set out in Section 3.1:
(a) each CCE Warrant outstanding immediately prior to the Effective Time shall, without any further action on the part of any holder thereof, in accordance with the adjustment provisions of the certificates governing the CCE Warrants, following the Effective Time entitle the holder to such number of MRZ Shares equal to (1) that number of CCE Shares that were issuable upon exercise of such CCE Warrant immediately prior to the Effective Time, multiplied by (2) the Exchange Ratio (provided that if the foregoing would result in the issuance of a fraction of a MRZ Share on any particular exercise of CCE Warrants in the aggregate, then the number of MRZ Shares otherwise issuable shall be rounded down to the nearest whole number of MRZ Shares), at an exercise price per MRZ Share equal to the quotient determined by dividing (X) the exercise price per CCE Share at which such CCE Warrant was exercisable immediately prior to the Effective Time, by (Y) the Exchange Ratio (provided that the aggregate exercise price payable on any particular exercise of CCE Warrants shall be rounded up to the nearest whole cent), and all certificates
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governing the CCE Warrants shall be cancelled and replaced with replacement certificates representing such adjusted CCE Warrants;
(b) each CCE Convertible Note outstanding immediately prior to the Effective Time shall adjust in accordance with the terms and conditions of the CCE Convertible Notes; and
(c) the CCE Plan and all agreements relating thereto shall be terminated and shall be of no further force and effect.
ARTICLE 4
DISSENT RIGHTS
4.1 Dissent Rights
Registered holders of CCE Shares as of the deadline for exercising dissent rights may exercise dissent rights with respect to all of the CCE Shares held by such registered holders ("Dissent Rights") in connection with the Arrangement pursuant to and in the manner set forth in Division 2 of Part 8 of the BCBCA, as modified by the Interim Order, the Final Order, any other order of the Court and this Article 4, provided that, notwithstanding Subsection 242(1)(a) of the BCBCA, the written objection to the Arrangement Resolution referred to in Subsection 242(1)(a) of the BCBCA must be received by CCE no later than 5:00 p.m. (Vancouver time) two (2) Business Days immediately preceding the date of the CCE Meeting (as it may be adjourned or postponed from time to time).
Each Dissenting Shareholder who duly exercises Dissent Rights and who is ultimately determined to be:
(a) entitled to be paid fair value for their CCE Shares, (i) shall be deemed to have transferred such CCE Shares to MRZ as provided, and as of the time stipulated, in Section 3.1(a), (ii) shall be deemed not to have participated in the transactions in Article 3 (other than Section 3.1(a)), (iii) shall be entitled to be paid the fair value of such CCE Shares by MRZ, less any applicable withholdings, which fair value, notwithstanding anything to the contrary in the BCBCA, shall be determined as of the close of business on the day before the Arrangement Resolution was adopted at the CCE Meeting, and (iv) 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 CCE Shares; or
(b) not entitled, for any reason, to be paid the fair value for such CCE Shares, (i) shall be deemed to have transferred such CCE Shares to MRZ as provided, and as of the time stipulated, in Section 3.1(b), and (ii) shall be deemed to have participated in the Arrangement on the same basis and at the same time as CCE Shareholders who have not exercised Dissent Rights in respect of such CCE Shares and shall be entitled to receive the Consideration to which CCE Shareholders who have not exercised Dissent Rights are entitled under Section 3.1(b).
4.2 Recognition of Dissenting Holders
(a) In no case shall any Party, the Depositary or any other person be required to recognize any Dissenting Shareholder or any other person exercising Dissent Rights unless such person (i) as of the deadline for exercising Dissent Rights, is the registered holder of those CCE Shares in respect of which such rights are sought to be exercised and (ii) has strictly
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complied with the procedures for exercising Dissent Rights and has not withdrawn such dissent prior to the Effective Time.
(b) In no case shall any Party or any other person be required to recognize any holder of CCE Shares who validly exercises Dissent Rights as a holder of such CCE Shares after the completion of the transfer under Section 3.1(a), and the names of such Dissenting Shareholders shall be removed from the registers of holders of CCE Shares at the same time as the event described in Section 3.1(a) occurs.
(c) CCE 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 CCE Shareholders who have not exercised Dissent Rights are entitled under Section 3.1(b).
(d) In addition to any other restrictions under the Interim Order or Division 2 of Part 8 of the BCBCA, none of the following shall be entitled to exercise Dissent Rights: (a) holders of CCE Options, CCE PSUs, CCE Convertible Notes or CCE Warrants (in their capacity as holders of such securities); (b) CCE Shareholders who voted or instructed a proxyholder to vote CCE Shares in favour of the Arrangement Resolution; (c) MRZ and any of their affiliates; and (d) any person who is not a registered holder of CCE Shares.
ARTICLE 5
DELIVERY OF CONSIDERATION
5.1 Payment of Consideration
MRZ will, following receipt of the Final Order and the satisfaction or, where not prohibited, the waiver by the applicable Party or Parties in whose favour the condition is, of the conditions set out in Article 6 of the Arrangement Agreement (excluding conditions that, by their terms, cannot be satisfied until the Effective Date, but subject to the satisfaction or, where not where not prohibited, the waiver by the applicable Party or Parties in whose favour the condition is, of those conditions as of the Effective Date) and in any case not later than three (3) Business Day prior to the Effective Date, deliver or cause to be delivered to the Depositary in escrow (the terms of such escrow to be satisfactory to CCE and MRZ, each acting reasonably) pending the Effective Time, sufficient MRZ Shares (and any treasury directions addressed to MRZ’s transfer agent as may be necessary) to satisfy the aggregate Consideration to be paid to CCE Shareholders (other than CCE Shareholders who have validly exercised their Dissent Rights and who have not withdrawn their notice of dissent) pursuant to this Plan.
5.2 Delivery of Consideration
(a) Upon surrender to the Depositary for cancellation of a certificate or direct registration statement (“DRS”) advice-statement that immediately before the Effective Time represented one or more outstanding CCE Shares that were transferred to MRZ in accordance with Section 3.1, together with a duly completed Transmittal Letter and such other documents and instruments as would have been required to effect the transfer of the CCE Shares formerly represented by such certificate or DRS advice-statement under the BCBCA and the constating documents of CCE and such additional documents and instruments as the Depositary may reasonably require, the Former CCE Shareholder surrendering such certificate shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder following the Effective Time, a certificate, holding statement or DRS advice-statement representing the MRZ Shares that such holder is
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entitled to receive in accordance with Section 3.1, less any amounts withheld pursuant to Section 5.5 and any certificate or DRS advice-statement representing such CCE Shares so surrendered shall forthwith thereafter be cancelled.
(b) After the Effective Time and until surrendered for cancellation as contemplated by this Section 5.2, each certificate or DRS advice-statement that immediately prior to the Effective Time represented one or more CCE Shares (other than CCE Shares in respect of which Dissent Rights have been validly exercised and not withdrawn or CCE Shares held by MRZ or any of their affiliates) shall be deemed at all times to represent only the right to receive in exchange therefor the Consideration that the holder of such certificate is entitled to receive in accordance with Section 3.1, less any amounts withheld pursuant to Section 5.5.
5.3 Lost Certificates
If any certificate that immediately prior to the Effective Time represented one or more outstanding CCE Shares that were exchanged in accordance with Section 3.1 shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder claiming such certificate to be lost, stolen or destroyed, the Depositary shall deliver in exchange for such lost, stolen or destroyed certificate, the Consideration that such holder is entitled to receive in accordance with Section 3.1 and such holder’s Transmittal Letter. When authorizing such delivery of the Consideration that such holder is entitled to receive in exchange for such lost, stolen or destroyed certificate, the holder to whom the Consideration is to be delivered shall, as a condition precedent to the delivery of the Consideration, give a bond satisfactory to MRZ and the Depositary in such amount as MRZ and the Depositary may direct, or otherwise indemnify MRZ and the Depositary in a manner satisfactory to MRZ and the Depositary, against any claim that may be made against MRZ or the Depositary with respect to the certificate alleged to have been lost, stolen or destroyed and shall otherwise take such actions as may be required by the constating documents of CCE.
5.4 Distributions with Respect to Unsurrendered Certificates
No dividend or other distribution declared or made after the Effective Time with respect to MRZ Shares with a record date after the Effective Time shall be delivered to the holder of any unsurrendered certificate or DRS advice-statement that, immediately prior to the Effective Time, represented outstanding CCE Shares unless and until the holder of such certificate or DRS advice-statement shall have complied with the provisions of Section 5.2 or Section 5.3. Subject to applicable Law and to withholding required pursuant to Section 5.5, at the time of such compliance, there shall, in addition to the delivery of certificates representing MRZ Shares to which such holder is thereby entitled, be delivered to such holder, without interest, the amount of the dividend or other distribution with a record date after the Effective Time theretofoe paid with respect to such MRZ Shares.
5.5 Withholding Rights
MRZ, CCE, the Depositary and their respective agents, as applicable, shall be entitled to deduct and withhold from any Consideration or any other amount payable or otherwise deliverable to any CCE Shareholder or any other person under this Plan of Arrangement (including any payment to Dissenting Shareholders and holders of CCE Options, CCE PSUs, CCE Convertible Notes and CCE Warrants) such Taxes or other amounts as MRZ, CCE, the Depositary or their respective agents, as the case may be, may reasonably determine is required to be deducted or withheld with respect to such payment under the Tax Act, the U.S. Tax Code, the Australian Tax Act or any provision of Laws in respect of Taxes. For the purposes hereof, all such deducted or withheld amounts shall be treated as having been paid to the person in respect of which such deduction or withholding was made on account of the obligation to make payment to such person hereunder, provided that such deducted or withheld amounts are timely remitted to the
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appropriate Governmental Entity by or on behalf of MRZ, CCE, the Depositary or their respective agents, as the case may be. To the extent that the amount so required to be deducted or withheld from any payment to a CCE Securityholder exceeds the cash component, if any, of the amount otherwise payable, subject to the prior approval of MRZ, any of MRZ, CCE, the Depositary or their respective agents, as the case may be, are hereby authorized to sell or otherwise dispose of such portion of the Consideration or other MRZ securities, as applicable, issuable as is necessary to provide sufficient funds to MRZ, CCE, the Depositary or their respective agents, as the case may be, to enable it to comply with all applicable deduction or withholding requirements, and MRZ, CCE, the Depositary or their respective agents, as the case may be, shall remit the applicable portion of the net proceeds of such sale (after deduction of all fees, commissions or costs in respect of such sale) to the appropriate Governmental Entity and shall remit to such CCE Securityholder any unapplied balance of the net proceeds of such sale. Any sale will be made in accordance with applicable Laws and at prevailing market prices and none of MRZ, CCE, the Depositary or their respective agents, as the case may be, shall be under any obligation to obtain a particular price, or indemnify any CCE Securityholder in respect of a particular price, for the portion of the Consideration or other securities of MRZ, as applicable, so sold.
5.6 Limitation and Proscription
To the extent that a Former CCE Shareholder shall not have complied with the provisions of Section 5.2 or Section 5.3 on or before the date that is six (6) years after the Effective Date (the “final proscription date”), then the Consideration that such Former CCE Shareholder was entitled to receive, in each case together with all entitlements to dividends and distributions thereon held for such Former CCE Shareholder, shall be automatically cancelled without any repayment of capital in respect thereof and the certificates, holding statements or DRS advice-statements representing MRZ Shares shall be delivered to MRZ by the Depositary and the certificates, holding statements and DRS advice-statements representing such MRZ Shares shall be cancelled by MRZ, and the interest of the Former CCE Shareholder in the Consideration (and dividends and distributions thereon) shall be terminated as of such final proscription date.
5.7 No Liens
Any exchange or transfer of securities pursuant to this Plan of Arrangement shall be free and clear of any liens, claims and encumbrances of third parties of any kind.
ARTICLE 6 AMENDMENTS
6.1 Amendments to Plan of Arrangement
(a) MRZ and CCE reserve the right to amend, modify 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 or supplement must be (i) set out in writing, (ii) agreed to in writing by MRZ and CCE, (iii) filed with the Court and, if made following the CCE Meeting, approved by the Court, and (iv) communicated to CCE Shareholders.
(b) Any amendment, modification or supplement to this Plan of Arrangement may be proposed by CCE or MRZ at any time prior to the CCE Meeting provided that MRZ and CCE, each acting reasonably, shall have consented thereto in writing, with or without any other prior notice or communication, and, if so proposed and accepted by the persons voting at the CCE Meeting (other than as may be required under the Interim Order), shall become part of this Plan of Arrangement for all purposes.
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(c) CCE and MRZ may amend, modify and/or supplement this Plan of Arrangement at any time and from time to time after the CCE Meeting and prior to the Effective Time with the approval of the Court, and, if and only if: (i) it is consented to in writing by each of MRZ and CCE, each acting reasonably; and (ii) if required by the Court, it is consented to by some or all of the CCE Shareholders voting in the manner directed by the Court.
(d) Notwithstanding anything to the contrary contained herein, CCE and MRZ may amend, modify and/or supplement this Plan of Arrangement without the approval of the Court, the CCE Shareholders or any other persons, provided that each such amendment, modification and/or supplement (i) must concern a matter which, in the reasonable opinion of each of CCE and MRZ, is of an administrative nature required to better give effect to the implementation of this Plan of Arrangement, and (ii) is not adverse to the economic interests of any CCE Shareholders.
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 herein will occur and be deemed to occur in the order set out in this Plan of Arrangement without any further act or formality, each of the Parties will make, do and execute, or cause to be made, done and executed, any such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by any 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 MRZ Shares to be issued and distributed to CCE Shareholders, all Replacement Options to be issued and distributed to holders of CCE Options and all Replacement Performance Rights to be issued and distributed to holders of CCE PSUs 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 pursuant to the terms, conditions and procedures set forth in the Arrangement Agreement.
ARTICLE 9 PARAMOUNTCY
From and after the Effective Time (i) this Plan of Arrangement shall take precedence and priority over any and all CCE Shares, CCE Options, CCE PSUs, CCE Convertible Notes and CCE Warrants issued prior to the Effective Time, (ii) the rights and obligations of registered and beneficial holders of CCE Shares (including Dissenting Shareholders), CCE Options, CCE PSUs, CCE Convertible Notes and CCE Warrants and CCE, MRZ, the Depositary and any trustee or registrar and transfer agent for the CCE Shares, CCE
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Options, CCE PSUs, CCE Convertible Notes and CCE Warrants, shall be solely as provided for in this Plan of Arrangement, and (iii) 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 CCE Shares, CCE Options, CCE PSUs, CCE Convertible Notes and CCE Warrants shall be deemed to have been settled, compromised, released and determined without liability except as set forth herein.