Common use of Going Private Transactions Clause in Contracts

Going Private Transactions. (a) TD shall not, and shall cause its Affiliates not to, propose or initiate any Going Private Transaction unless such Going Private Transaction (i) involves the acquisition of or offer to acquire 100% of the Common Stock not owned by TD and its Affiliates (and, in the case of a Going Private Transaction to be effected by means of a tender or exchange offer, includes a commitment by TD or such Affiliate to promptly consummate a short-form merger to acquire any remaining shares of Common Stock at the same price in the event it obtains pursuant to such tender or exchange offer such level of ownership of such classes of Capital Stock that would be required to effect a merger pursuant to Section 253 of the DGCL or any successor provision) and (ii) is conducted in compliance with this Section 2.2. (b) Prior to the second anniversary of the Closing, TD shall not, and shall cause its Affiliates not to, propose or initiate any Going Private Transaction unless invited to do so by a majority of the Designated Independent Directors. Any Going Private Transaction effected during this period shall also be subject to the requirements of Section 2.2(c). (c) From the second anniversary of the Closing until the fifth anniversary of the Closing: (i) TD or any its Affiliates may initiate and hold discussions regarding a Going Private Transaction with the Board on a confidential basis that would not reasonably be expected to require either the Company or TD to make any public disclosure thereof in order to comply with their disclosure obligations under the U.S. federal securities laws or Canadian securities laws. In connection with any such Going Private Transaction, the Designated Independent Directors may retain an Independent Investment Banking Firm and outside legal counsel, the fees and expenses of which shall be borne by the Company. If a majority of the Designated Independent Directors approves such transaction, TD or such Affiliates may publicly announce, commence and effect such Going Private Transaction. (ii) Any Going Private Transaction commenced pursuant to this Section 2.2(c) may only be completed if it receives Unaffiliated Stockholder Approval. (d) From and after the fifth anniversary of the Closing, TD or any of its Affiliates may propose, initiate or effect a Going Private Transaction, provided that such Going Private Transaction is either approved by a majority of the Designated Independent Directors or by Unaffiliated Stockholder Approval and further provided that TD and its Affiliates shall not propose, publicly announce or initiate a Going Private Transaction pursuant to this Section 2.2(d) without providing prior notice to the Designated Independent Directors and offering to first discuss and negotiate confidentially the terms such proposed Going Private Transaction with the Designated Independent Directors. If requested by a majority of the Designated Independent Directors, TD will use its reasonable best efforts to so negotiate the terms of such proposed Going Private Transaction in good faith, provided that if, notwithstanding the use of such reasonable best efforts, TD and the Designated Independent Directors are unable to agree on the terms of a Going Private Transaction within 60 days, TD may, subject to applicable law, publicly propose to the Company’s shareholders and, subject to receiving Unaffiliated Stockholder Approval thereof, publicly announce, commence and effect a Going Private Transaction. In connection with any such Going Private Transaction, the Designated Independent Directors may retain an Independent Investment Banking Firm and outside legal counsel, the fees and expenses of which shall be borne by the Company.