Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approval, the Company Board may, or may cause the Company to, make a Change in Recommendation or approve, recommend or enter into a definitive agreement with respect to such Superior Proposal, if and only if: (a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure or similar agreement or restriction; (b) the Acquisition Proposal did not arise as a result of a violation, in any material respect, by the Company of this Article 5; (c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreement, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “Superior Proposal Notice”); (d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal; (e) at least five Business Days (the “Purchaser Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal from the Company; (f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (g) after the Purchaser Matching Period, the Company Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)); (h) the Company Board has determined, in good faith, after consultation with the Company’s outside legal counsel that the failure to take the relevant action would be inconsistent with its fiduciary duties; and (i) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a). (2) During the Purchaser Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. (3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from the Company. (4) At the Purchaser’s reasonable request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider all reasonable comments to such press release as requested by the Purchaser and its outside legal counsel. (5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than six Business Days prior to the Outside Date.
Appears in 2 contracts
Sources: Arrangement Agreement (Cresco Labs Inc.), Arrangement Agreement (Columbia Care Inc.)
Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal for the Company that constitutes a Superior Proposal prior to obtaining receipt of the Required ApprovalApproval of the Arrangement Resolution, the Company Board may, or may cause the Company tosubject to compliance with Article 7 and Section 8.2, make a Change in Recommendation or approve, recommend or enter into a definitive agreement with respect to such Superior Acquisition Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Acquisition Proposal pursuant to an existing confidentiality, standstill, non-disclosure disclosure, use, business purpose or similar agreement restriction with the Company or restrictionany of its Subsidiaries;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of compliance with its obligations under this Article 5;
(c) the Company has delivered to the Parent and the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreementagreement with respect to such Superior Proposal, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “Company Superior Proposal Notice”);
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior ProposalProposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “Purchaser Company Matching Period”) have elapsed from the date that is the later of the date on which the Parent and the Purchaser received the Company Superior Proposal Notice and the date on which the Parent and the Purchaser received a copy all of the proposed definitive agreement for the Superior Proposal from the Companymaterials set forth in Section 5.4(1);
(f) during any Purchaser Company Matching Period, the Parent and the Purchaser has have had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Purchaser Company Matching Period, the Company Board (i) has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Parent and the Purchaser under Section 5.4(2));
) and (hii) the Company Board has determined, determined in good faith, after consultation with the Company’s its outside legal counsel and financial advisors, that the failure by the Company Board to take recommend that the relevant action Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(ih) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii7.2(1) and pays the Company Termination Fee Expense Reimbursement pursuant to Section 8.2(3)(a)8.2.
(2) During the Purchaser Company Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): purpose: (a) the Company Board shall review any offer made by the Parent and the Purchaser under Section 5.4(1)(f5.4(1) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal for the Company previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Parent and the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Parent and the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Parent and the Purchaser and the Company and the Parent and the Purchaser shall amend this Agreement to reflect such offer made by the Parent and the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Parent and the Purchaser shall be afforded a new five (5) Business Day Purchaser Company Matching Period from the later of the date on which the Parent and the Purchaser received the new Company Superior Proposal Notice from the Company and the date on which the Parent and the Purchaser received a copy all of the proposed definitive agreement for the new Superior Proposal materials set forth in Section 5.5(1)(d) from the Company.
(4) At the Purchaser’s reasonable request, the The Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal for the Company which is not determined to be a Superior Proposal is publicly announced or if publicly disclosed or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Parent and the Purchaser and its their outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Parent and the Purchaser and its outside legal their counsel.
(5) If the Company provides a Company Superior Proposal Notice to the Parent and Purchaser after a date that is less than five ten (10) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five fifteen (15) Business Days after the scheduled date of the Company Meeting, but in any event as directed by the Parent and the Purchaser acting reasonably; provided, however, that the Company Meeting shall not be adjourned or postponed to a date that is not less later than six five (5) Business Days prior to the Outside Date.
(6) Nothing in this Agreement shall prevent the Company Board from, subject to its obligations under Section 8.2, complying with Section 2.17 of Multilateral Instrument 62-104 – Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ circular in respect of an Acquisition Proposal for the Company.
Appears in 1 contract
Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Company Board may, or may cause authorize the Company to, subject to compliance with Section 8.2, make a Change in Recommendation or approve, recommend or and enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure standstill or similar agreement or restriction;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of this compliance with its obligations under Article 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreementagreement with respect to such Superior Proposal, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “Superior Proposal Notice”);
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five seven (7) Business Days (the “Purchaser Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to the Company to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after if the Purchaser Matching Periodhas offered to the Company to amend this Agreement and the Arrangement under Section 5.4(2), the Company Board has determined in good faith, after consultation with its the Company’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2));
(h) the Company Board has determined, determined in good faith, after consultation with the Company’s outside legal counsel that it is appropriate for the failure Company Board to take the relevant action would be inconsistent enter into a definitive agreement with its fiduciary dutiesrespect to such Superior Proposal; and
(i) prior to or concurrently concurrent with making a Change in Recommendation or entering into such definitive agreement agreement, the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a)8.2.
(2) During the Purchaser Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): ) for such purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) At the Purchaser’s reasonable request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider all reasonable comments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than six Business Days prior to the Outside Date.and
Appears in 1 contract
Sources: Arrangement Agreement
Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal for the Company that constitutes a Superior Proposal prior to obtaining receipt of the Required ApprovalApproval of the Arrangement Resolution, the Company Board may, or may cause the Company tosubject to compliance with Article 7 and Section 8.2, make a Change in Recommendation or approve, recommend or enter into a definitive agreement with respect to such Superior Acquisition Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Acquisition Proposal pursuant to an existing confidentiality, standstill, non-disclosure disclosure, use, business purpose or similar agreement restriction with the Company or restrictionany of its Subsidiaries;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of compliance with its obligations under this Article 5;
(c) the Company has delivered to the Parent and the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreementagreement with respect to such Superior Proposal, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “"Company Superior Proposal Notice”");
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior ProposalProposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “Purchaser "Company Matching Period”") have elapsed from the date that is the later of the date on which the Parent and the Purchaser received the Company Superior Proposal Notice and the date on which the Parent and the Purchaser received a copy all of the proposed definitive agreement for the Superior Proposal from the Companymaterials set forth in Section 5.4(1)(d);
(f) during any Purchaser Company Matching Period, the Parent and the Purchaser has have had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Purchaser Company Matching Period, the Company Board (i) has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Parent and the Purchaser under Section 5.4(2));
) and (hii) the Company Board has determined, determined in good faith, after consultation with the Company’s its outside legal counsel and financial advisors, that the failure by the Company Board to take recommend that the relevant action Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(ih) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii7.2(1)(c)(iii) and pays the Company Termination Fee Expense Reimbursement pursuant to Section 8.2(3)(a)8.2.
(2) During the Purchaser Company Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): purpose: (a) the Company Board shall review any offer made by the Parent and the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal for the Company previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Parent and the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Parent and the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Parent and the Purchaser and the Company and the Parent and the Purchaser shall amend this Agreement to reflect such offer made by the Parent and the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Parent and the Purchaser shall be afforded a new five (5) Business Day Purchaser Company Matching Period from the later of the date on which the Parent and the Purchaser received the new Company Superior Proposal Notice from the Company and the date on which the Parent and the Purchaser received a copy all of the proposed definitive agreement for the new Superior Proposal materials set forth in Section 5.5(1)(d) from the Company.
(4) At the Purchaser’s reasonable request, the The Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal for the Company which is not determined to be a Superior Proposal is publicly announced or if publicly disclosed or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Parent and the Purchaser and its their outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Parent and the Purchaser and its outside legal their counsel.
(5) If the Company provides a Company Superior Proposal Notice to the Parent and Purchaser after a date that is less than five ten (10) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five fifteen (15) Business Days after the scheduled date of the Company Meeting, but in any event as directed by the Parent and the Purchaser acting reasonably; provided, however, that the Company Meeting shall not be adjourned or postponed to a date that is not less later than six five (5) Business Days prior to the Outside Date.
(6) Nothing in this Agreement shall prevent the Company Board from, subject to its obligations under Section 8.2, complying with Section 2.17 of Multilateral Instrument 62-104—Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors' circular in respect of an Acquisition Proposal for the Company.
Appears in 1 contract
Purchaser Right to Match. (1) If Provided that the Company is in compliance with Section 5.1, Section 5.2 and Section 5.3, if the Company receives an a Company Acquisition Proposal that constitutes a Company Superior Proposal prior to obtaining receipt of the Required ApprovalApproval of the Arrangement Resolution, the Company Board may, or may cause the Company tosubject to compliance with Article 5 and Section 8.4, make a Change in Recommendation or approve, recommend or enter into a definitive agreement with respect to such Superior Company Acquisition Proposal, if and only if:
(a) the Person making the Company Superior Proposal was not restricted from making such Company Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure use of information, or similar agreement or restrictionrestriction and no waiver of any such provision was granted to the Person;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of compliance with its obligations under this Article 55 in respect of such Company Superior Proposal;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Company Acquisition Proposal constitutes a Company Superior Proposal and of the intention of the Company Board to enter into such definitive agreement, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Company Acquisition Proposal that the failure to enter into such definitive agreement would be inconsistent with the Company Board’s fiduciary duties (the “Company Superior Proposal Notice”);
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Company Superior ProposalProposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “Purchaser Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Company Superior Proposal Notice and the date on which the Purchaser received a copy all of the proposed definitive agreement for the Superior Proposal materials set out in Section 5.4(1)(d) from the Company;
(f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Company Acquisition Proposal to cease to be a Company Superior Proposal;
(g) after if the Purchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2), following the end of the Purchaser Matching Period, the Company Board has determined in good faith, after consultation with its the Company’s outside legal counsel and financial advisorsadvisers, that such Company Acquisition Proposal continues to constitute a Company Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2));
(h) the Company Board has determined, determined in good faith, after consultation with the Company’s outside legal counsel that it is necessary for the failure Company Board to take the relevant action would be inconsistent enter into a definitive agreement with respect to such Company Superior Proposal in order to properly discharge its fiduciary duties; and
(i) prior to or concurrently with making a Change in Recommendation or the entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii8.2(1)(c)(ii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a)8.4.
(2) During the Purchaser Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, faith in order to determine whether such proposal would, upon acceptance, result in the Company Acquisition Proposal previously constituting a Company Superior Proposal ceasing to be a Company Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Company Acquisition Proposal would cease to be a Company Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Company Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Company Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five (5) Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Company Superior Proposal Notice from the Company and the date on which the Purchaser received a copy all of the proposed definitive agreement for the materials set out in Section 5.4(1)(d) in respect of such new Company Superior Proposal from the Company.
(4) At the Purchaser’s reasonable request, the The Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Company Acquisition Proposal which is not determined to be a Company Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an a Company Acquisition Proposal which has been publicly announced no longer being a Company Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Purchaser and its outside legal counsel. Nothing contained in this Agreement shall prohibit the Company Board from responding, through a directors’ circular or otherwise as required by Law to a Company Acquisition Proposal that it determined not to be a Company Superior Proposal.
(5) If the Company provides a Company Superior Proposal Notice to the Purchaser after a date that is less than five (5) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting Meeting, as directed by the Purchaser acting reasonably, to a date acceptable to both Parties (acting reasonably) that is not more than five (5) Business Days after the scheduled date of the Company Meeting, but in any event and the Company shall not otherwise propose to a date that is not less than six Business Days prior to adjourn or postpone the Outside DateCompany Meeting.
Appears in 1 contract
Sources: Arrangement Agreement (Mogo Finance Technology Inc.)
Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal for the Company that constitutes a Superior Proposal prior to obtaining receipt of the Required ApprovalApproval of the Arrangement Resolution, the Company Board may, or may cause the Company tosubject to compliance with Article 7 and Section 8.2, make a Change in Recommendation or approve, recommend or enter into a definitive agreement with respect to such Superior Acquisition Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Acquisition Proposal pursuant to an existing confidentiality, standstill, non-disclosure non- disclosure, use, business purpose or similar agreement restriction with the Company or restrictionany of its Subsidiaries;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of compliance with its obligations under this Article 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreementagreement with respect to such Superior Proposal, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “Company Superior Proposal Notice”);
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior ProposalProposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “Purchaser Company Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Company Superior Proposal Notice and the date on which the Purchaser received a copy all of the proposed definitive agreement for the Superior Proposal from the Companymaterials set forth in Section 5.5(1)(d);
(f) during any Purchaser Company Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(25.5(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Purchaser Company Matching Period, the Company Board (i) has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(25.5(2));
) and (hii) the Company Board has determined, determined in good faith, after consultation with the Company’s its outside legal counsel and financial advisors, that the failure by the Company Board to take recommend that the relevant action Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(ih) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii7.2(1)(c)(iii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a)8.2.
(2) During the Purchaser Company Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f5.5(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal for the Company previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.45.5, and the Purchaser shall be afforded a new five (5) Business Day Purchaser Company Matching Period from the later of the date on which the Purchaser received the new Company Superior Proposal Notice from the Company and the date on which the Purchaser received a copy all of the proposed definitive agreement for the new Superior Proposal materials set forth in Section 5.5(1)(d) from the Company.
(4) At the Purchaser’s reasonable request, the The Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal for the Company which is not determined to be a Superior Proposal is publicly announced or if publicly disclosed or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(25.5(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If the Company provides a Company Superior Proposal Notice to the Purchaser after a date that is less than five ten (10) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five fifteen (15) Business Days after the scheduled date of the Company Meeting, but in any event as directed by the Purchaser acting reasonably; provided, however, that the Company Meeting shall not be adjourned or postponed to a date that is not less later than six five (5) Business Days prior to the Outside Date.
(6) Nothing in this Agreement shall prevent the Company Board from, subject to its obligations under Section 8.2, complying with Section 2.17 of Multilateral Instrument 62- 104 – Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ circular in respect of an Acquisition Proposal for the Company.
Appears in 1 contract
Purchaser Right to Match.
(1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approval, the Company Board may, or may cause the Company to, make a Change in Recommendation and approve or approve, recommend or enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure disclosure, use, business purpose or similar agreement or restriction;
(b) the Acquisition Proposal Proposal, inquiry, proposal, offer or request did not arise arise, directly or indirectly, as a result of a violation, in any material respect, violation by the Company of this Article 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreement, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “"Superior Proposal Notice”);") together with all documentation related to and detailing the Superior Proposal;
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five (5) Business Days (the “"Purchaser Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal from the Company;Company;
(f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;Proposal;
(g) after the Purchaser Matching Period, the Company Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2));
(h) the Company Board has determined, in good faith, after consultation with the Company’s 's outside legal counsel that it is necessary for the failure Company Board to take enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the relevant action would be inconsistent with its fiduciary dutiesCompany; and
(i) such Superior Proposal does not require the Company or any other Person to seek to interfere with the attempted successful completion of the Arrangement or any alternative transaction pursued by the Purchaser pursuant to the terms of the Voting Support Agreements (including requiring the Company to delay, adjourn, postpone or cancel the Company Meeting) or provide for the payment of any break, termination or other fees or expenses or confer any rights or options to acquire assets or securities of the Company or any of its Subsidiaries to any Person in the event that the Company or any of its Subsidiaries completes the Arrangement or any other similar transaction with the Purchaser agreed to prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Company terminates termination of this Agreement or pursuant to Section 7.2(1)(c)(ii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a)Voting Support Agreements.
(2) During the Purchaser Matching Period, or such longer period as the Company may may, if requested by the Purchaser, approve in writing for such purpose (in its sole discretion): ) for such purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s 's outside legal counsel and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five (5) Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) At the Purchaser’s reasonable 's request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five ten (10) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five ten (10) Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than six Business Days prior to the Outside Date.five
Appears in 1 contract
Sources: Arrangement Agreement
Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approval, the Company Board may, or may cause the Company to, make a Change in Recommendation or approve, recommend or enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure or similar agreement or restriction;
(b) the Acquisition Proposal did not arise as a result of a violation, in any material respect, violation by the Company of this Article 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreement, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “Superior Proposal Notice”);
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five Business Days (the “Purchaser Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(25.5(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Purchaser Matching Period, the Company Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(25.5(2));
(h) the Company Board has determined, in good faith, after consultation with the Company’s outside legal counsel that the failure to take the relevant action would be inconsistent with its fiduciary duties; and
(i) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a8.2(1)(e).
(2) During the Purchaser Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f5.5(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.45.5, and the Purchaser shall be afforded a new five (5) Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) At the Purchaser’s reasonable request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(25.5(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider all reasonable comments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five ten (10) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five ten (10) Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than six eleven (11) Business Days prior to the Outside Date.
Appears in 1 contract
Sources: Arrangement Agreement
Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Company Board may, or may cause authorize the Company to, subject to compliance with Section 8.2, make a Change in Recommendation or approve, recommend or and enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure standstill or similar agreement or restriction;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of this compliance with its obligations under Article 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreementagreement with respect to such Superior Proposal, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal (the “"Superior Proposal Notice”");
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five seven (7) Business Days (the “Purchaser "Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to the Company to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after if the Purchaser Matching Periodhas offered to the Company to amend this Agreement and the Arrangement under Section 5.4(2), the Company Board has determined in good faith, after consultation with its the Company's outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2));
(h) the Company Board has determined, determined in good faith, after consultation with the Company’s 's outside legal counsel that it is appropriate for the failure Company Board to take the relevant action would be inconsistent enter into a definitive agreement with its fiduciary dutiesrespect to such Superior Proposal; and
(i) prior to or concurrently concurrent with making a Change in Recommendation or entering into such definitive agreement agreement, the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a)8.2.
(2) During the Purchaser Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): ) for such purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s 's outside legal counsel and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser Parties shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value respect of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) At the Purchaser’s reasonable 's request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after any the Company Board determines that an Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If the Company provides a Superior Proposal Notice to the Purchaser on or after a date that is less than five (5) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five ten (10) Business Days after the scheduled date of the Company Meeting, Meeting but in any event to a date that is not less than six Business Days prior to before the Outside Date.
Appears in 1 contract
Purchaser Right to Match. (1) If Provided that the Company is in compliance with Section 5.1, Section 5.2 and Section 5.3, if the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining receipt of the Required ApprovalApproval of the Arrangement Resolution, the Company Board may, or may cause the Company tosubject to compliance with Article 5 and Section 7.4, make a Change in Recommendation or approve, recommend or enter into a definitive agreement with respect to such Superior Acquisition Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure use of information, or similar agreement or restrictionrestriction and no waiver of any such provision was granted to the Person;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of compliance with its obligations under this Article 55 in respect of such Superior Proposal;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreement, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal that the failure to enter into such definitive agreement would be inconsistent with the Company Board's fiduciary duties (the “"Superior Proposal Notice”");
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior ProposalProposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “"Purchaser Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the proposed definitive agreement for the Superior Proposal materials set out in Section 5.4(1)(d) from the Company;
(f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after if the Purchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2), following the end of the Purchaser Matching Period, the Company Board has determined in good faith, after consultation with its the Company's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2));
(h) the Company Board has determined, determined in good faith, after consultation with the Company’s 's outside legal counsel that it is necessary for the failure Company Board to take the relevant action would be inconsistent enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(i) prior to or concurrently with making a Change in Recommendation or the entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii7.2(1)(c)(iii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a)7.4.
(2) During the Purchaser Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisors, faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five (5) Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Superior Proposal Notice from the Company and the date on which the Purchaser received a copy all of the proposed definitive agreement for the materials set out in Section 5.4(1)(d) in respect of such new Superior Proposal from the Company.
(4) At the Purchaser’s reasonable request, the The Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If . Nothing contained in this Agreement shall prohibit the Company provides Board from responding, through a directors' circular or otherwise as required by Law to an Acquisition Proposal that it determined not to be a Superior Proposal Notice to the Purchaser after a date that is less than five Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than six Business Days prior to the Outside DateProposal.
Appears in 1 contract
Sources: Arrangement Agreement (Mogo Inc.)
Purchaser Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Company Board may, or may cause authorize the Company to, subject to compliance with Section 8.2, make a Change in Recommendation or approve, recommend or and enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure standstill or similar agreement or restriction;
(b) the Acquisition Proposal did not arise as a result of a violationCompany has been, and continues to be, in any material respect, by the Company of this compliance with its obligations under Article 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to enter into such definitive agreementagreement with respect to such Superior Proposal, together with a written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisorsFinancial Advisors, has determined should be ascribed to any non-non cash consideration offered under such Superior Proposal (the “Superior Proposal Notice”);
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five seven (7) Business Days (the “Purchaser Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(f) during any Purchaser Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to the Company to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after if the Purchaser Matching Periodhas offered to the Company to amend this Agreement and the Arrangement under Section 5.4(2), the Company Board has determined in good faith, after consultation with its the Company’s outside legal counsel and financial advisorsFinancial Advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2));
(h) the Company Board has determined, determined in good faith, after consultation with the Company’s outside legal counsel that it is appropriate for the failure Company Board to take the relevant action would be inconsistent enter into a definitive agreement with its fiduciary dutiesrespect to such Superior Proposal; and
(i) prior to or concurrently concurrent with making a Change in Recommendation or entering into such definitive agreement agreement, the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii7.2(1)(c)(iii) and pays the Company Termination Fee pursuant to Section 8.2(3)(a)8.2.
(2) During the Purchaser Matching Period, or such longer period as the Company may approve in writing for such purpose (in its sole discretion): ) for such purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith, in consultation with the Company’s outside legal counsel and financial advisorsFinancial Advisors, in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser Parties shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value respect of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five Business Day Purchaser Matching Period from the later of the date on which the Purchaser received the new Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) At the Purchaser’s reasonable request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after any the Company Board determines that an Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or if the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal which has been publicly announced no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider make all reasonable comments amendments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If the Company provides a Superior Proposal Notice to the Purchaser on or after a date that is less than five (5) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than five Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than six Business Days prior to the Outside Date.ten
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Sources: Arrangement Agreement