Right to Match. (a) If Yerbaé receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if: (i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives; (ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé; (iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”); (iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice; (v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b); (vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and (vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee. (b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. (c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé. (d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel. (e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. (f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 5 contracts
Sources: Arrangement Agreement (Safety Shot, Inc.), Arrangement Agreement (Safety Shot, Inc.), Arrangement Agreement (Yerbae Brands Corp.)
Right to Match. (a1) If Yerbaé a Party receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal (the “Receiving Party”) prior to obtaining to, in the Yerbaé Shareholder Approvalcase of GameSquare being the Receiving Party, the Yerbaé Board approval of the GameSquare Arrangement Resolution by the GameSquare Shareholders, and in the case of Engine Gaming being the Receiving Party, the approval of the Engine Gaming Resolution by the Engine Gaming Shareholders, the Receiving Party may, subject to compliance with Section 8.27.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person person or persons making the Acquisition such Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purposes or similar agreement restriction with Yerbaéthe Receiving Party or its Subsidiaries;
(iiib) Yerbaé the Receiving Party has been, and continues to be in, compliance with its obligations under this Article 5 in all material respects;
(c) the Receiving Party has delivered to Safety Shot the other Party a written notice of the determination of the Yerbaé Board Receiving Party’s board of directors that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board Receiving Party’s board of directors to make a Change in Recommendation or approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé Board Recommendationvalue in financial terms that the board of directors has, which written notice specifies the material terms and conditions of in consultation with its outside financial advisors, determined should be ascribed to any non-cash consideration offered with respect to such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all ancillary documents (and supporting materials) containing material terms and conditions of the Superior Proposal, including any financing documents supplied to a Receiving Party in connection therewith;
(e) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the other Party received the Superior Proposal NoticeNotice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot such other Party has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board Receiving Party’s board of directors 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the other Party under Section 4.4(b5.4(2))) and has determined in good faith, after consultation with its outside legal counsel, that the failure by the board of directors to take such action would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Receiving Party terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee7.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodReceiving Party may approve in writing for such purpose: (a) the Yerbaé Board Receiving Party’s board of directors shall review any offer made by Safety Shot the other Party under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with outside legal 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 Proposal (b) Yerbaé the Receiving Party shall negotiate in good faith with Safety Shot the other Party to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the other Party and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board Receiving Party’s board of directors determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Receiving Party shall promptly so advise Safety Shot the other Party and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety Shotthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the other Party shall be afforded a new full Matching Period from the later of the date on which Safety Shot such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Receiving Party.
(d4) At the written request The Receiving Party’s board of Safety Shot, the Yerbaé Board directors shall promptly reaffirm the Yerbaé GameSquare Board Recommendation or the Engine Gaming Board Recommendation, as the case may be, by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Receiving Party shall provide Safety Shot the other Party and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the other Party and its counsel.
(e5) Nothing in this Agreement Arrangement shall prohibit the Yerbaé Board board of directors from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé the Receiving Party shall provide Safety Shot the other Party and its legal counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselcircular or other disclosure. Further, nothing in this Agreement shall prevent the Yerbaé Board board of directors from making any disclosure to the Yerbaé Shareholders Receiving Party’s shareholders if the Yerbaé Boardboard of directors, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board board of directors or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board board of directors shall be permitted to make such disclosure, the Yerbaé Board board of directors shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a5.4(1) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review or the form and content first sentence of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselthis paragraph.
(f6) If the Receiving Party provides a Superior Proposal Notice to the other Party on a date that is less than five Business Days before the GameSquare Meeting or the Engine Gaming Meeting, as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or adjourn or postpone such GameSquare Meeting or Engine Gaming Meeting, as the case may be, in accordance with the terms of this Agreement to a date specified by the other Party that is not more than ten Business Days after the scheduled date of the GameSquare Meeting or the Engine Gaming Meeting, as the case may be, provided that in no event shall such adjourned or postponed meeting be held on a date that is less than five Business Days prior to the Outside Date.
(7) Each Party will ensure that each of its Representatives is aware of the provisions of this Article 5. Any violation of the restrictions set forth in this Section 4.4 Article 5 by the Yerbaé Subsidiaries a Subsidiary or Yerbaé’s a Representative of a Party or the Yerbaé Subsidiaries’ respective Representatives by a Representative of a Subsidiary of a Party shall be deemed to be a breach of this Section 4.4 Article by Y▇▇▇▇▇. Furthermore, Yerbaé such Party for which such Party shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representativesresponsible.
Appears in 3 contracts
Sources: Arrangement Agreement (Engine Gaming & Media, Inc.), Arrangement Agreement (GameSquare Esports Inc), Arrangement Agreement
Right to Match. (a1) If Yerbaé a Party receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal (the “Receiving Party”) prior to obtaining to, in the Yerbaé Shareholder Approvalcase of Alacer being the Receiving Party, the Yerbaé Board approval of the Arrangement Resolution by the Alacer Shareholders, and in the case of SSR being the Receiving Party, the approval of the SSR Resolutions by the SSR Shareholders, the Receiving Party may, subject to compliance with Section 8.28.2 and Section 8.3, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the person or persons making such Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purposes or similar restriction with the Receiving Party or its subsidiaries;
(b) the Receiving Party has been, and continues to be, in compliance with its obligations under this Article 4 7 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Receiving Party has delivered to Safety Shot the other Party a written notice of the determination of the Yerbaé Board Receiving Party’s board of directors that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board Receiving Party’s board of directors to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Receiving Party’s board of directors regarding the value and financial terms and conditions that the board of directors, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to a Receiving Party in connection therewith;
(e) at least ten (10) full Business Days five business days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the other Party received the Superior Proposal NoticeNotice and the date on which such other Party received all of the materials set forth in Section 7.4(1)(d);
(vf) during any Matching Period, Safety Shot such other Party has had the opportunity (but not the obligation), in accordance with Section 4.4(b7.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board Receiving Party’s board of directors 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the other Party under Section 4.4(b7.4(2))) and that the failure by the board of directors to take such action would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Receiving Party terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.2(1)(c)(ii) or Section 8.2(1)(d)(ii), as applicable, and pays Safety Shot the SSR Termination FeeAmount or the Alacer Termination Amount, as applicable, pursuant to Section 8.3.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodReceiving Party may approve in writing for such purpose: (a) the Yerbaé Board Receiving Party’s board of directors shall review any offer made by Safety Shot the other Party under this Section 4.4(b7.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Receiving Party shall negotiate negotiate, and cause its Representatives to negotiate, in good faith with Safety Shot the other Party to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the other Party to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board Receiving Party’s board of directors determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Receiving Party shall promptly so advise Safety Shot the other Party and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety Shotthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.47.4, and Safety Shot the other Party shall be afforded a new five business day Matching Period from the later of the date on which Safety Shot such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 7.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Receiving Party.
(d4) At the written request The Receiving Party’s board of Safety Shot, the Yerbaé Board directors shall promptly reaffirm the Yerbaé Alacer Board Recommendation or the SSR Board Recommendation, as the case may be, by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b7.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Receiving Party shall provide Safety Shot the other Party and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the other Party and its counsel.
(e5) Nothing If the Receiving Party provides a Superior Proposal Notice to the other Party on a date that is less than 10 business days before the Alacer Meeting or the SSR Meeting, as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or adjourn or postpone such Alacer Meeting or SSR Meeting, as the case may be, in accordance with the terms of this Agreement shall prohibit to a date specified by the Yerbaé Board from responding through a directors’ circular other Party that is not more than 10 business days after the scheduled date of the Alacer Meeting or otherwise the SSR Meeting, as required by Applicable Securities Laws to an Acquisition Proposal the case may be, provided that Yerbaé in no event shall provide Safety Shot and its counsel with such adjourned or postponed meeting be held on a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure date that is less than five business days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 3 contracts
Sources: Arrangement Agreement (SSR Mining Inc.), Arrangement Agreement, Arrangement Agreement
Right to Match. (a) If Yerbaé receives an Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance with its obligations under this Article 4 in all respects Sections 16, 17 and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé18;
(iii) Yerbaé such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which written notice specifies will include the material director’s determination regarding the value or range of value in financial terms and conditions that the directors of such Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivv) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot Purchaser received the Superior Proposal NoticeNotice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
(vvi) during any Matching Period, Safety Shot if Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer offered to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b18(b);
(vi) after the Matching Period, the Yerbaé Board has directors of Vitran (i) have determined in good faith, after consultation with its Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Purchaser under Section 4.4(b18(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates Vitran has terminated this Agreement pursuant to Section 8.1(a)(vii)(B20(a)(iii)2) and pays Safety Shot the paid any applicable Termination FeeFee pursuant to Section 19(b).
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (ai) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the Yerbaé Board directors of Vitran shall review any offer made by Safety Shot under this Section 4.4(b) Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such proposal offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (biii) Yerbaé Vitran shall negotiate in good faith with Safety Shot Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Purchaser to proceed with the transactions Transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Vitran shall promptly so advise Safety Shot Purchaser and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety ShotPurchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modification modifications to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall constitute not have the right to further amend the Arrangement in respect of a new third such amendment or modification to any Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from YerbaéProposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be If Vitran provides a Superior Proposal Notice to Purchaser after a date that is publicly announced less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or publicly disclosed or shall postpone the Yerbaé Board determines Vitran Meeting to a date that a proposed amendment to is not more than seven Business Days after the terms scheduled date of this Agreement or the Plan of Arrangement Vitran Meeting, as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested directed by Safety Shot and its counselPurchaser.
(e) Nothing in this Agreement Vitran shall prohibit advise the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot Vitran Subsidiaries and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties their respective Representatives of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; providedprohibitions set out in Sections 16, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) 17 and provided that Yerbaé shall provide Safety Shot 18 and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 these sections by Vitran, the Yerbaé Vitran Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be is deemed to be a breach of this Section 4.4 these sections by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesVitran.
Appears in 3 contracts
Sources: Arrangement Agreement (Vitran Corp Inc), Arrangement Agreement (TransForce Inc. \ Quebec Canada), Arrangement Agreement (Vitran Corp Inc)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes would reasonably be expected to constitute a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, approval of the Yerbaé Arrangement Resolution by the Affected Securityholders the Board (or any committee thereof) may, subject to compliance with Section 8.2Part 7, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal or withdraw or modify the Board Recommendation, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesPart 5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement or withdraw or modify the Board Recommendation with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé Proposal; and
(g) if the Purchaser has negotiated, and caused its Representatives offered to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of amend this Agreement that Safety Shot proposes pursuant to and the Arrangement under Section 4.4(b5.4(2);
(vi) after the Matching Period, the Yerbaé Board (i) has determined in good faith, after completing a financial review and consultation with its outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that it is necessary for the Board enter into a definitive agreement with respect to such Superior Proposal or withdraw or modify the Board Recommendation in order to properly discharge its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this the Agreement pursuant to Section 8.1(a)(vii)(B7.1(a)(iv)(B) and pays Safety Shot upon payment to the Purchaser of the Company Termination FeeFee payable by the Company pursuant to Section 7.2(a)(i).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall will review any offer made by Safety Shot the Purchaser and Bridgeway under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after completing a financial review and consultation with outside legal, 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) Yerbaé shall the Company will negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall the Company will promptly so advise Safety Shot the Purchaser and Yerbaé and Safety Shot shall the Parties will amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall will take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Affected Securityholders or other material terms or conditions thereof shall will constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot shall the Purchaser will be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall will promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall The Company will provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counselrelease.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser after a date that is less than five Business Days before the Yerbaé BoardMeeting, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined Company will either proceed with or will postpone the Meeting to a date that is not more than five Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; providedMeeting, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 directed by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries Purchaser and its and their respective RepresentativesBridgeway.
Appears in 2 contracts
Sources: Arrangement Agreement (Bridgeway National Corp.), Arrangement Agreement
Right to Match. (a) If Yerbaé receives Subject to Section 6.2(b), Augusta agrees that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal (other than a confidentiality agreement permitted by Section 6.1(d)) and/or withdraw, modify or qualify its approval or recommendation in respect of the Offer and recommend or approve the Acquisition Proposal, unless:
(i) the Augusta Board of Directors has determined that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, Acquisition Proposal constitutes a Superior Proposal;
(ii) Augusta has complied with its obligations under all other provisions of this Article 6 and has provided the Offeror with a copy of the Acquisition Proposal prior (including, if applicable, a copy of any proposed agreement relating to obtaining such Acquisition Proposal);
(iii) a period (the Yerbaé Shareholder Approval, “Response Period”) of five (5) business days shall have elapsed from the Yerbaé later of (A) the date on which the Offeror received written notice from the Augusta Board mayof Directors that the Augusta Board of Directors determined, subject to compliance with this Section 8.26.2, to accept, approve, recommend or enter into a definitive binding agreement or make a Change in Recommendation to proceed with respect to such the Superior Proposal, if and only if:
(iB) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and the date the Offeror received a copy of such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”)Proposal;
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Response Period, the Yerbaé Augusta Board of Directors has determined in good faith, after consultation with its financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b))Proposal; and
(viiv) prior to or Augusta concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.1(i) and pays Safety Shot has paid to the Offeror the Termination FeePayment pursuant to Section 6.3(a)(ii).
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Response Period, Safety Shot shall the Offeror will have the opportunityright, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement Offer. The Augusta Board of Directors will review any proposal by the Offeror to amend the terms of the Offer in order to determine, in good faith in order the exercise of its fiduciary duties whether the Offer as it is proposed by the Offeror to determine whether such proposal be amended would, upon acceptanceacceptance by Augusta, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments Proposal compared to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such proposed amended termsOffer. If the Yerbaé Augusta Board determines that such Acquisition Proposal would cease of Directors does so determine, the Augusta Board of Directors will cause Augusta to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend enter into an amendment to this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to reflecting the foregoingamended Offer.
(c) The Augusta Board of Directors shall promptly (and in any event within three business days) reaffirm its recommendation of the Offer by news release after the Augusta Board of Directors determines that the proposed amendment to the Contemplated Transactions and the Offer would result in an Acquisition Proposal that was publicly announced not being a Superior Proposal and the Offeror has so amended the terms of this Agreement. The Offeror and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such news release and Augusta shall give reasonable consideration to all comments made by the Offeror and its counsel.
(d) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Augusta Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 6.2 and Safety Shot the Offeror shall be afforded a new Matching Response Period from the later in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any each such Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit prevent the Yerbaé Augusta Board of Directors from responding through a directors’ circular or otherwise as required by Applicable Securities applicable Laws to or complying with Rule 14d-9 and Rule 14e-2 promulgated under the U.S. Exchange Act, in respect of an Acquisition Proposal provided that Yerbaé shall provide Safety Shot it determines is not a Superior Proposal. The Offeror and its counsel with shall be given a reasonable opportunity to review and comment on the form and content of such disclosure any directors’ circular prior to its printing and Augusta shall give reasonable consideration to any all comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot Offeror and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 2 contracts
Sources: Support Agreement (HudBay Minerals Inc.), Support Agreement (Augusta Resource CORP)
Right to Match. (a1) If Yerbaé a Party receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal (the “Receiving Party”) prior to obtaining to, in the Yerbaé Shareholder Approvalcase of Aphria being the Receiving Party, the Yerbaé Board approval of the Arrangement Resolution by the Aphria Shareholders, and in the case of Tilray being the Receiving Party, the approval of the Tilray Resolutions by the Tilray Shareholders, the Receiving Party may, subject to compliance with Section 8.27.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person person or persons making the Acquisition such Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purposes or similar agreement restriction with Yerbaéthe Receiving Party or its Subsidiaries;
(iiib) Yerbaé the Receiving Party has delivered to Safety Shot the other Party a written notice of the determination of the Yerbaé Board Receiving Party’s board of directors that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board Receiving Party’s board of directors to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Receiving Party’s board of directors regarding the value (or range of values) in financial terms and conditions that the board of directors, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to a Receiving Party in connection therewith;
(d) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the other Party received the Superior Proposal NoticeNotice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(c);
(ve) during any Matching Period, Safety Shot such other Party has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after the Matching Period, the Yerbaé Board Receiving Party’s board of directors 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the other Party under Section 4.4(b5.4(2))) and that the failure by the board of directors to take such action would be inconsistent with its fiduciary duties; and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Receiving Party terminates this Agreement pursuant to Section 8.1(a)(vii)(B) 7.2, and pays Safety Shot the Tilray Termination FeeAmount or the Aphria Termination Amount, as applicable, pursuant to Section 7.3.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodReceiving Party may approve in writing for such purpose: (a) the Yerbaé Board Receiving Party’s board of directors shall review any offer made by Safety Shot the other Party under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Receiving Party shall negotiate negotiate, and cause its Representatives to negotiate, in good faith with Safety Shot the other Party to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the other Party to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board Receiving Party’s board of directors determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Receiving Party shall promptly so advise Safety Shot the other Party and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety Shotthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the other Party shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(c) with respect to the new Superior Proposal from Yerbaéthe Receiving Party.
(d4) At the written request The Receiving Party’s board of Safety Shot, the Yerbaé Board directors shall promptly reaffirm the Yerbaé Aphria Board Recommendation or the Tilray Board Recommendation, as the case may be, by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Receiving Party shall provide Safety Shot the other Party and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the other Party and its counsel.
(e5) Nothing If the Receiving Party provides a Superior Proposal Notice to the other Party on a date that is less than 10 Business Days before the Aphria Meeting or the Tilray Meeting, as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or adjourn or postpone such Aphria Meeting or Tilray Meeting, as the case may be, in accordance with the terms of this Agreement shall prohibit to a date specified by the Yerbaé Board from responding through a directors’ circular other Party that is not more than 10 Business Days after the scheduled date of the Aphria Meeting or otherwise the Tilray Meeting, as required by Applicable Securities Laws to an Acquisition Proposal the case may be, provided that Yerbaé in no event shall provide Safety Shot and its counsel with such adjourned or postponed meeting be held on a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure date that is less than five Business Days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 2 contracts
Sources: Arrangement Agreement (Tilray, Inc.), Arrangement Agreement (Aphria Inc.)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, approval of the Yerbaé Arrangement Resolution by the Common Shareholders the Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least ten (10) full four Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to recommend that the Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the securityholders of the Company or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new four Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser on a date that is less than 10 Business Days before the Yerbaé BoardCompany Meeting, acting in good faith and upon the advice of its outside legal and financial advisors, Company shall have determined either proceed with or shall postpone the Company Meeting to a date that is not more than 10 Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; providedCompany Meeting, however, that, notwithstanding as directed by the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselPurchaser.
(f6) Any The Company shall advise its Subsidiaries and their respective Representatives of the prohibitions set out in this Article 5 and any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.this
Appears in 2 contracts
Sources: Arrangement Agreement (Cnooc LTD), Arrangement Agreement (Nexen Inc)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, approval of the Yerbaé Arrangement Resolution by the Company Shareholders the Board may, subject to compliance with Section 8.2or may cause the Company to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Company or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes it has received a Superior Proposal and of the intention of the Yerbaé Board to approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(d) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vie) after the Matching Period, the Yerbaé 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 Safety Shot the Purchaser under Section 4.4(b5.4(2)); and
(viif) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeAmount pursuant to Section 8.2(2).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with outside legal 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the Yerbaé foregoing the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot shall be afforded a new provided that the Matching Period from in respect of such new Acquisition Proposal shall extend only until the later of the date on which Safety Shot end of the initial five (5) Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice with respect to for the new Superior Proposal from YerbaéAcquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e4) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Company Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel5.4(1).
(f5) Any violation If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five (5) Business Days before the Company Meeting, the Company shall be entitled to, and shall upon request from the Purchaser, postpone the Company Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the restrictions set forth Company Meeting (and, in this Section 4.4 by any event, prior to the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesOutside Date).
Appears in 2 contracts
Sources: Arrangement Agreement (SNDL Inc.), Arrangement Agreement (Valens Company, Inc.)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, approval of the Yerbaé Arrangement Resolution by the Shareholders the Board may, or may cause the Company to, subject to compliance with Section 8.28.2(3), enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 Section 5.1, Section 5.2 and Section 5.3 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Company or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all ancillary documentation (and supporting materials) containing material terms and conditions of the Superior Proposal (including any financing documents subject to customary confidentiality provisions) provided to the Company, including the cash value that the Board has, after consultation with outside financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(d) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal and all ancillary documentation (and supporting materials) containing material terms and conditions of the Superior Proposal (including any financing documents subject to customary confidentiality provisions) provided to the Company, including the cash value that the Board has, after consultation with outside financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(ve) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after the Matching Period, the Yerbaé Board has determined in good faith, faith (i) after consultation with its outside legal counsel and financial advisorsadvisor, 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 Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) after consultation with its outside legal counsel, that the failure to take the relevant action would be inconsistent with its fiduciary duties; and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2(3).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or amends or modifies other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot provided that the Matching Period in respect of such new Acquisition Proposal shall be afforded a new Matching Period three (3) Business Days from the date that is the later of the date on which Safety Shot received the Superior Proposal Notice with respect to Purchaser receives the new Superior Proposal from YerbaéNotice and the date on which the Purchaser receives a copy of the documentation referred to in Section 5.4(1)(d) above with respect to such new Superior Proposal.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall will promptly reaffirm the Yerbaé Board Recommendation by press release after after: (a) the Board determines any Acquisition Proposal which the Yerbaé Board that has determined not to be a Superior Proposal is been publicly announced or publicly disclosed is not a Superior Proposal; or (b) the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an any Acquisition Proposal no longer which has been publicly announced or made not being a Superior Proposal, and the Purchaser has so amended the terms of the Arrangement. Yerbaé shall provide Safety Shot The Purchaser and its outside legal counsel with will be given a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and Company shall give reasonable consideration to any comments made by Safety Shot the Purchaser and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f5) If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than seven (7) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone the Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven (7) Business Days after the scheduled date of the Company Meeting but in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(6) Any violation of the restrictions set forth in this Section 4.4 Article 5 by the Yerbaé Subsidiaries Subsidiary or Yerbaé’s or a Representative of the Yerbaé Subsidiaries’ respective Representatives shall Company will be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 Article 5 by the Yerbaé Subsidiaries Company for which the Company will be responsible.
(7) Nothing contained in this Agreement shall prevent the Board from complying with Section 2.17 of National Instrument 62-104 – Takeover Bids and its Issuer Bids and their respective Representativessimilar provisions under Securities Laws relating to the provision of a directors’ circular in respect of an Acquisition Proposal or from calling and/or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the CBCA or taking any other action to the extent ordered or otherwise mandated by a Governmental Entity.
Appears in 2 contracts
Sources: Arrangement Agreement (Spire Global, Inc.), Arrangement Agreement (Spire Global, Inc.)
Right to Match. (a1) If Yerbaé If, at any time following the date of this Agreement and prior to obtaining the approval of the Arrangement Resolution at the Company Meeting, the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder ApprovalProposal, the Yerbaé Board maymay accept, subject to compliance with Section 8.2endorse, recommend or enter into a definitive agreement or with respect to such Acquisition Proposal and/or make a Change in Recommendation with respect to such Superior ProposalRecommendation, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to accept, endorse, recommend or enter into such a definitive agreement with respect to such Superior Acquisition Proposal and/or withdraw or modify the Yerbaé Board make a Change in Recommendation, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version (and, if applicable, a copy of the proposed definitive agreement under which such for the Superior Proposal is proposed to be consummated Proposal) (the “Superior Proposal Notice”);
(ivc) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received from the Company the Superior Proposal NoticeNotice and, if applicable, a copy of the proposed definitive agreement for the Superior Proposal;
(vd) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.3(3), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vie) after if the Matching PeriodPurchaser has offered to amend this Agreement and the Arrangement under Section 5.3(3), the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.3(3);
(f) if the Company receives an Acquisition Proposal within seven (7) Business Days of the date scheduled for the Company Meeting, the Company shall be permitted to postpone or adjourn the Company Meeting to a day not more than twenty (20) days after the date scheduled for the Company Meeting in order to consider and act on such Acquisition Proposal and, if the Board determines such Acquisition Proposal to be a Superior Proposal, to observe and satisfy the Matching Period. Where the Company has provided the Purchaser notice pursuant to Section 5.3(1)(b) and the Company Meeting is scheduled to be held prior to the expiry of the Matching Period, if directed to do so by the Purchaser, the Company shall postpone or adjourn the Company Meeting as directed by the Purchaser to a date designated by the Purchaser (which shall not be later than twenty (20) days after the scheduled date of the Company Meeting or any previous postponement or adjournment thereof). The Company shall, in the event that the Company and the Purchaser amend the terms of this Agreement or the Arrangement pursuant to Section 5.3(3), ensure that the details of such amended Agreement or Arrangement are communicated to the Class A Shareholders prior to the holding or resumption of the postponed or adjourned Company Meeting;
(g) nothing in this Agreement shall prevent the Board from responding through a directors’ circular or otherwise as required by Laws to an Acquisition Proposal that it determines is not a Superior Proposal; the Purchaser and its counsel shall be given a reasonable opportunity to review and comment on the content of any directors’ circular prior to its printing and the Company shall give reasonable consideration to all comments made by the Purchaser and its counsel; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board and/or making a Change in Recommendation, Yerbaé the Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the (Termination Feefor Superior Proposal or Change in Recommendation as a result of Superior Proposal).
(b2) Y▇▇▇▇▇ acknowledges For purposes of this Agreement the Matching Period shall expire at 5:00 p.m. (Eastern time) on the fifth (5th) Business Day following the day on which the Superior Proposal Notice and agrees that, during definitive agreement (if applicable) was provided to the Purchaser.
(3) During the Matching Period, Safety Shot or such longer period as the Company may, in its sole and absolute discretion, approve in writing for such purpose: (a) Purchaser shall have the opportunity, opportunity (but not the obligation, ) to propose offer to amend the terms of Arrangement and this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal; (ab) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.3(1)(d) to amend the terms of this Agreement and the Arrangement in good 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 (bc) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c4) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.3, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Company.
(d5) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.3(3) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement (Hillman Companies Inc)
Right to Match. (a) If Yerbaé receives an Acquisition Proposal Subject to Section 4.6(b), E&C covenants that the Yerbaé Board determinesit will not accept, approve, recommend or enter into any agreement, understanding or arrangement in good faith after consultation with its outside financial and legal advisors, constitutes respect of a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with (other than a confidentiality agreement permitted by Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if4.5(d)) unless:
(i) Yerbaé E&C has been, and continues to be, in compliance complied with its obligations under Section 4.5 and the other provisions of this Article 4 in and has provided Parent with a copy of all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of material documentation relating to the Yerbaé Subsidiaries or any of their respective Representatives;Superior Proposal; and
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated period (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Response Period”) of five Business Days shall have elapsed from the date on which Safety Shot Parent received both a copy of the Superior Proposal Notice;
(v) during any Matching Periodtogether with written notice from E&C that the Board of Directors determined, Safety Shot has had the opportunity (but not the obligation), in accordance subject only to compliance with this Section 4.4(b)4.6, to offer accept, approve recommend or enter into a binding agreement to amend this Agreement and proceed with the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination FeeProposal.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Response Period, Safety Shot shall Parent will have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreementthe Arrangement. The Board of Directors will review any such proposal by Parent to amend the terms of the Arrangement, including an increase in, or modification of, the Consideration. During consideration to be received by the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith in order Securityholders to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting to which Parent is responding would be a Superior Proposal ceasing when assessed against the Arrangement as it is proposed by Parent to be a Superior Proposal; and (b) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to amended. If the terms Board of this Agreement or Directors does not so determine, the Plan Board of Directors will promptly reaffirm its recommendation of the Arrangement as would enable Safety Shot amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal. Notwithstanding the foregoing, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend E&C’s obligations pursuant to this Agreement to reflect such offer made by Safety ShotAgreement, and shall take and cause to be taken all such actions as are necessary to give effect including with respect to the foregoingcalling and holding of the Meeting and, if the requisite approvals of E&C Securityholders are obtained pursuant to Section 2.3 hereof, the application for the Final Order, shall continue.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 4.6 and Safety Shot Parent shall be afforded a new Matching Response Period from the later in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéeach such Acquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 2 contracts
Sources: Arrangement Agreement (Elephant & Castle Group Inc), Arrangement Agreement (Sexton Roger)
Right to Match. (a1) If Yerbaé If, prior to the Arrangement Resolution being approved by the Common Shareholders in accordance with the Interim Order, the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisorsfaith, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder ApprovalProposal, the Yerbaé Board and any board (or equivalent body) of a Subsidiary of a Company may, subject to compliance with Article 7 and Section 8.2, authorize the Company and/or such Subsidiary (as applicable) to enter into a definitive agreement with respect to such Superior Proposal or make a Change in Recommendation with respect to such Superior ProposalRecommendation, if and only if:
(ia) Yerbaé has been, and continues to be, in compliance with such Superior Proposal did not result from a breach by the Company of its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iib) the Person making the Acquisition such Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaérestriction;
(iiic) Yerbaé the Company has delivered to Safety Shot the Purchasers a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board make a Change in Recommendation, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the a “Superior Proposal Notice”);
(ivd) the Company has provided the Purchasers with a copy of the proposed definitive agreement for the Superior Proposal and all other agreements which are ancillary to such definitive agreement and all supporting materials, including financing commitment documents supplied to the Company in connection therewith;
(e) at least ten five (105) full Business Days have elapsed from the date that is the later of the date on which the Purchasers received the Superior Proposal Notice and the date on which the Purchasers received all of the materials set forth in Section 5.4(1)(d) (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vif) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchasers under Section 4.4(b5.4(2)); and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c) (ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Company may approve in writing for such purpose: (i) the Purchasers shall have the opportunity, opportunity (but not the obligation), to propose offer to amend this Agreement and the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (aii) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchasers to amend the terms of this Agreement and the Arrangement Arrangement, in good faith in order and in consultation with outside legal and financial advisors, to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and (biii) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchasers to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchasers to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchasers and Yerbaé the Company and Safety Shot the Purchasers shall amend this Agreement to reflect such offer made by Safety Shotthe Purchasers, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Common Shareholders or other material terms or conditions thereof of such Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the Purchasers shall be afforded a new Matching Period from the later of the date on which Safety Shot the Purchasers received the Superior Proposal Notice and the date on which the Purchasers received all of the materials set forth in Section 5.4(1)(d) with respect to the such new Superior Proposal from YerbaéProposal; provided that, notwithstanding Section 5.4(1)(e) above, the duration of such Matching Period shall be three (3) Business Days rather than five (5) Business Days.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which that the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchasers and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchasers and its their counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchasers on a date that is less than ten (10) Business Days before the Yerbaé BoardCompany Meetings, acting in good faith the Company shall be entitled to, and upon the advice of its outside legal and financial advisorsPurchasers shall be entitled to require the Company to, shall have determined adjourn or postpone the Company Meetings to a date that is not more than ten (10) Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable LawCompany Meetings; provided, however, that, notwithstanding that the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meetings shall not be permitted adjourned or postponed to make a Change in Recommendation, other date later than as permitted by Section 4.4(afive (5) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review Business Days before the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders and Company Equity Compensation Holders, the Yerbaé Board may, subject may authorize the Company to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé has beento the Company’s knowledge, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaérestriction;
(iiiii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the good faith determination of the Yerbaé Board Board, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement, together with a copy of the definitive agreement with respect to such Superior Proposal and/or withdraw or modify for the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version disclosure of the proposed agreement value, expressed in dollars, that the Board has, in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under which such the Superior Proposal is proposed to be consummated (collectively, the “Superior Proposal Notice”);
(iviii) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(viv) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(viv) after if the Matching PeriodPurchaser has offered to amend this Agreement and the Arrangement under Section 5.4(b), the Yerbaé Board has determined in good faith, after consultation with its the Company’s financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(b));
(vi) the Board has determined in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Board to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(a)(iii)(B) and pays Safety Shot the Termination FeeAmount pursuant to Section 7.4.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (ai) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(a)(iv) to amend the terms of this Agreement and the Arrangement in good 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 (bii) Yerbaé if it would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser, and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or a modification ofto, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new an additional five-Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to the new Superior Proposal from YerbaéNotice.
(d) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an a publicly announced Acquisition Proposal constituting a Superior Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its legal counsel.
(e) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws Superior Proposal Notice to an Acquisition Proposal provided the Purchaser on a date that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review is less than 10 Business Days before the form and content of such disclosure Company Meeting, the Company may, and shall give reasonable consideration at the request of Purchaser, in accordance with the Interim Order, postpone the Company Meeting to a date that is not more than 15 Business Days after the scheduled date of the Company Meeting (and, in any comments made by Safety Shot and its counsel. Furtherevent, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date).
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution, the Yerbaé Company Board may, subject may authorize the Company to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal or may make a Company Change in Recommendation, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality standstill, non-disclosure, non-solicitation or similar agreement, restriction or covenant contained in any Contract entered into with the Company or any of its Subsidiaries;
(ii) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé5;
(iii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board make a Company Change in Recommendation, which written including a notice specifies as to the material value in financial terms and conditions of such that the Company Board has, in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “a "Superior Proposal Notice”");
(iv) the Company or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials (including any financing documents, subject to customary confidentiality provisions with respect to fee letters or similar information) provided to the Company in connection therewith;
(v) at least ten (10) five full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy from the Company of the definitive agreement and all of the materials referred to in Section 5.4(a)(iv);
(vvi) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vivii) after the Matching Period, the Yerbaé Board Company Board:
(A) 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 (if applicable, compared to the terms of the Arrangement (and, if applicable, as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(b)); and
(viiB) prior has determined in good faith, after consultation with its outside legal counsel, that the failure by the Company Board to or concurrently with entering recommend that the Company enter into such a definitive agreement or withdrawing or modifying to make a Company Change in Recommendation with respect to such Superior Proposal would be inconsistent with the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination FeeCompany Board's fiduciary duties.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Company may approve in its sole discretion and in writing for such purpose:
(i) the Purchaser shall have the opportunity, opportunity (but not the obligation, ) to propose offer to amend this Agreement and the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: Arrangement;
(aii) the Yerbaé Company Board shall shall, in good faith and in consultation with its outside legal counsel and financial advisors, review any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and
(iii) the Company shall, and (b) Yerbaé shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If If, as a consequence of the Yerbaé foregoing, the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shot, the Purchaser and shall take and or cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot to the extent such new Acquisition Proposal is determined to be a Superior Proposal, the Purchaser shall be afforded a new Matching Period from the later of the date on which Safety Shot the Purchaser received the a new Superior Proposal Notice and the date on which the Purchaser received from the Company a copy of the definitive agreement and all of the materials referred to in Section 5.4(a)(iv) with respect to the each such new Superior Proposal from YerbaéProposal.
(d) At the written request of Safety Shot, the Yerbaé The Company Board shall promptly reaffirm the Yerbaé Company Board Recommendation by way of a press release after issued by the Company after:
(i) any Acquisition Proposal which that the Yerbaé Company Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or announced; or
(ii) the Yerbaé Company Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of any such disclosure press release and shall give reasonable consideration to any comments made amendments to such press release requested by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of Purchaser or its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(fe) Any violation If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than ten Business Days before the Company Meeting, the Company shall be entitled to, and shall upon request from the Purchaser, postpone the Company Meeting to a date that is not more than ten Business Days after the scheduled date of the restrictions set forth Company Meeting, but in this Section 4.4 by any event to a date that is not less than five Business Days prior to the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesOutside Date.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal for the Company that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Board Company may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure or similar agreement restriction with Yerbaéthe Company;
(iiib) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 5;
(c) the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board Company to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Company Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Company Superior Proposal Notice and a copy of the proposed agreement for the Superior Proposal Noticefrom the Company;
(vf) during any the Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.5(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after if the Matching PeriodPurchaser has offered to amend this Agreement and the Arrangement under Section 5.5(2), the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b)5.5(2); and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(iii) and pays Safety Shot the Company Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Company Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.5(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.5, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Company Superior Proposal Notice with respect to and a copy of the proposed agreement for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Company Board shall promptly reaffirm the Yerbaé Company Board Recommendation by press release after any Acquisition Proposal for the Company which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Company Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.5(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to release, recognizing that whether or not such press release as requested comments are appropriate will be determined by Safety Shot and its counselthe Company, acting reasonably.
(e5) 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 the Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not less than five (5) Business Days and not more than ten (10) Business Days after the scheduled date of the Company Meeting; provided, however, that the Company Meeting shall not be adjourned or postponed to a date later than seven (7) Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.5 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force and in no event shall prohibit the Yerbaé Board from responding through Company be permitted to put the Superior Proposal to a directors’ circular or otherwise as required by Applicable Securities Laws vote of the Company Shareholders at the Company Meeting, it being understood that any necessary shareholder vote in respect of a Superior Proposal shall require the Company to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot duly call and convene a separate meeting of the Company Shareholders.
(7) Subject to its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Furtherobligations under Section 8.2, nothing in this Agreement shall prevent the Yerbaé Company Board from:
(a) responding, through a directors’ circular or otherwise, only to the extent required by applicable Securities Laws, to an Acquisition Proposal for the Company, or from making a Company Change in Recommendation as a result of a Material Adverse Effect with respect to the Purchaser;
(b) making any disclosure to the Yerbaé Shareholders securityholders of the Company if the Yerbaé Company Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have first determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Company Board or such disclosure is otherwise required under Applicable Lawapplicable Laws; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.or
(fc) Any violation calling and/or holding a meeting of Company Shareholders requisitioned by Company Shareholders in accordance with the restrictions set forth OBCA or taking any other action with respect to an Acquisition Proposal for the Company to the extent ordered or otherwise mandated by a court of competent jurisdiction in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representativesaccordance with Laws.
Appears in 1 contract
Right to Match. (a1) If Yerbaé Notwithstanding any other provision of this Agreement, if the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, nothing shall prevent the Yerbaé Board mayCompany Board, subject to compliance with Article 7 and Section 8.2, enter from making a Change in Recommendation or entering into a definitive agreement or make a Change in Recommendation with respect to such Acquisition Proposal that is a Superior ProposalProposal (it being acknowledged and agreed that this Section 5.3 shall not apply to the execution of a confidentiality agreement permitted by Section 5.1(4)), if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot Parent a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Company Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Company Board regarding the value and financial terms and conditions of 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 and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided Parent a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from following the date that is the later of the date on which Safety Shot ▇▇▇▇▇▇ received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(vf) during any each Matching Period, Safety Shot Parent has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.3(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Parent under Section 4.4(b5.3(2);
(h) such Superior Proposal does not provide for the payment of any break, termination or other fees or expenses to any person in the event that the Company completes the transactions contemplated by this Agreement or any other similar transaction with Parent agreed to prior to the termination of this Agreement (for greater certainty, this Section 5.1(3) does not apply in connection with any agreement entered into by the Company concurrently with or following the termination of this Agreement pursuant to Section 7.2(1)(c)(ii)); and
(viii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the each Matching Period: (a) the Yerbaé Company Board shall review any written offer made by Safety Shot Parent under this Section 4.4(b5.3(1)(f) to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such amended proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé the Company shall negotiate in good faith with Safety Shot Parent to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Parent to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot Parent, and Yerbaé the Company, Parent and Safety Shot Acquireco shall amend this Agreement to reflect such written offer made by Safety ShotParent, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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 Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.3, and Safety Shot Parent shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot ▇▇▇▇▇▇ received the Superior Proposal Notice with respect to and a copy of the definitive agreement for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Company Board shall promptly reaffirm the Yerbaé Company Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Company Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.3(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot Parent and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of any such disclosure and press release.
(5) If the Company provides a Superior Proposal Notice to Parent after a date that is less than ten (10) Business Days before the Company Shareholder Meeting, the Company shall, as directed by ▇▇▇▇▇▇, either proceed with or shall give reasonable consideration postpone the Company Shareholder Meeting, to any comments made by Safety Shot and its counsel. Further, nothing a date that is not more than five (5) Business Days after the scheduled date of the Company Shareholder Meeting.
(6) Nothing contained in this Agreement shall prevent prohibit the Yerbaé Company Board from making any disclosure to the Yerbaé Company Shareholders, responding through a directors’ circular or otherwise as required by applicable Securities Laws to any Acquisition Proposal or from calling and holding a meeting of the Company Shareholders if requisitioned by the Yerbaé Board, acting Company Shareholders in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent accordance with the fiduciary duties of CBCA or ordered to be held by a court pursuant to the Yerbaé Board or such disclosure is otherwise CBCA, in each case prior to the Effective Date if required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselapplicable Laws.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé receives an Acquisition Proposal The Company covenants that the Yerbaé Board determinesit will not, and that it will cause its Subsidiaries not to, accept, approve, recommend or enter into any agreement, understanding or arrangement in good faith after consultation with its outside financial and legal advisors, constitutes respect of a Superior Proposal prior to obtaining (other than a confidentiality agreement permitted by Section 6.5(a)) and the Yerbaé Shareholder Approval, the Yerbaé Company Board may, subject to compliance with Section 8.2, enter into a definitive agreement or will not make a Change in Recommendation with respect to such Superior Proposal, if and only ifunless:
(i) Yerbaé the Company has been, complied and continues caused its Subsidiaries to be, in compliance comply with its their obligations under the other provisions of this Article 4 Section 6 in all respects and connection with such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesSuperior Proposal;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated period (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Response Period”) of five (5) Business Days shall have elapsed from the date on which Safety Shot Parent and Acquisition Sub received (A) written notice from the Company Board that the Company Board determined, subject only to compliance with this Section 6.6, to accept, approve, recommend or enter into a binding agreement to proceed with the Superior Proposal Noticeand (B) a copy of the Superior Proposal (including the acquisition agreement, commitment letters and all related documents);
(viii) during any Matching the Response Period, Safety Shot has had Parent and Acquisition Sub shall have the opportunity (right, but not the obligation), in accordance with Section 4.4(b), to offer to amend in writing, in a binding fashion, the terms of this Agreement Agreement, and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, Company shall negotiate in good faith with Safety Shot Parent and Acquisition Sub with respect to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)such proposed amended offer;
(viiv) after the Matching Response Period, the Yerbaé Company Board has determined determines in good faith, after consultation with receiving the advice of its outside legal counsel and financial advisorsadvisor, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement when assessed against this Agreement as proposed to be amended in such binding writing submitted by Safety Shot under Section 4.4(b)); andParent and Acquisition Sub;
(viiv) prior to before or concurrently with entering into taking such definitive agreement or withdrawing or modifying action, the Yerbaé Board Recommendation, Yerbaé Company (a) terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.2(d) and (b) pays Safety Shot the Termination FeeFee pursuant to Section 8.3(a)(i); and
(vi) concurrently with or promptly following such termination, the Company enters into a binding written agreement with the Person making such Superior Proposal.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 6.6 and Safety Shot Parent shall be afforded a new Matching Response Period from the later in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the each such Acquisition Proposal, provided that any such new Superior Proposal from YerbaéResponse Period shall be three (3) Business Days in length.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(ec) Nothing contained in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Company Board from making any disclosure to the Yerbaé Shareholders Company Shareholders, including regarding one or more Acquisition Proposals, if in the Yerbaé good faith judgment of the Company Board, acting in good faith and upon the advice of after consultation with its outside legal and financial advisorscounsel, shall have determined that the failure to make such disclosure would be inconsistent with breach the Company Board’s fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Lawapplicable Legal Requirements; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé the Company shall provide Safety Shot to Parent and its counsel with a reasonable opportunity to review the form and content Acquisition Sub as much prior written notice of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel(including a copy thereof) as reasonably possible.
(fd) Any violation If Parent and Acquisition Sub receive the notice contemplated by Section 6.6(a)(ii) within five (5) Business Days of the restrictions set forth in this Section 4.4 Meeting, the Company shall either proceed with the Meeting, or postpone the Meeting to a date that is not later than five (5) Business Days after the date of the postponed Meeting, all as reasonably directed by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesParent.
Appears in 1 contract
Right to Match. (a1) If Yerbaé receives an Acquisition Proposal that at any time following the Yerbaé Board determines, in good faith after consultation with its outside financial date of this Agreement and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder ApprovalRequired Securityholder Approval at the Meeting, the Yerbaé Corporation receives an unsolicited Acquisition Proposal that constitutes a Superior Proposal, the Board may, subject may authorize the Corporation to compliance with Section 8.2, make a Change in Recommendation and/or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(ia) Yerbaé subject to Section 5.1(3), the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to any existing confidentiality, standstill or similar restriction to which the Corporation is party;
(b) such Superior Proposal did not arise, directly or indirectly, as a result of a violation by the Corporation directly or indirectly through its Subsidiaries or their respective Representatives of this Article 5 in any material respect, and the Corporation has been, been and continues to be, be in compliance with its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(iic) the Person making Corporation has provided the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement Purchaser with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of detailing the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Corporation has provided the Purchaser with a copy of the proposed definitive agreement for the Superior Proposal and all schedules and exhibits thereto, together with any financing documents supplied to the Corporation in connection therewith;
(e) at least ten three (103) full Business Days (the “Matching Period”) shall have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement Notice and the Arrangement date on which the Purchaser received all of the materials set forth in order for Section 5.4(1)(d) above (it being understood that the Corporation shall promptly (and in any event within twenty four (24) hours) inform the Purchaser of any amendment to the financial or other material terms of such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(bduring such period);
(vif) after the Matching Period, the Yerbaé 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 (Proposal, if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2));
(g) after the Matching Period, the Board has determined, in good faith, after consultation with its legal counsel, that failure of the Board to make a Change in Recommendation and/or to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such a definitive agreement or withdrawing or modifying with respect to such Superior Proposal, the Yerbaé Board Recommendation, Yerbaé Corporation terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(3)(b) and pays Safety Shot the Corporation Termination FeeFee in full pursuant to Section 7.3.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Corporation may approve in writing for such purpose: (a) the Purchaser shall have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreement, including an increase in, or modification of, Agreement and the Consideration. During the Matching Period: Arrangement; (ab) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith in order to determine determine, in consultation with its financial and outside legal advisors, whether such proposal wouldthe Purchaser’s amended offer, upon acceptance, result in would cause the Acquisition Proposal previously constituting a Superior Proposal ceasing giving rise to the Matching Period to cease to be a Superior Proposal; and (bc) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to if the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such the Acquisition Proposal would cease giving rise to such Matching Period no longer constitutes a Superior Proposal compared to this Agreement and the Arrangement as they are proposed to be a Superior Proposalamended by the Purchaser, Yerbaé the Corporation shall promptly (and in any event within twenty four (24) hours) so advise Safety Shot the Purchaser and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect give effect to such offer made by Safety Shotamendments, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase into, or a modification of, the Consideration (or value of such Consideration) consideration to be received by Yerbaé Shareholders or other amendment to the material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this the requirements under Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new three (3) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the new Superior Proposal from Yerbaédate on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) above.
(d4) At Upon the written request of Safety ShotPurchaser, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release (but on no more than three (3) occasions per Acquisition Proposal) after any Acquisition Proposal which is not determined by the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such Acquisition Proposal, including a customary “stop-look-and-listen” or similar communication, shall not be considered to be in violation of this Section 5.4(4) provided the Board has re-affirmed the Board Recommendation before the end of such five (5) Business Day period). Yerbaé The Corporation shall provide Safety Shot the Purchaser and its outside legal counsel advisors with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Corporation provides a directors’ circular or otherwise as required by Applicable Securities Laws Superior Proposal Notice to an Acquisition Proposal provided the Purchaser after a date that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review is less than five (5) Business Days before the form and content of such disclosure Meeting, the Corporation may, and shall give reasonable consideration if directed by the Purchaser acting reasonably, postpone or adjourn the Meeting to a date that is not more than ten (10) Business Days after the scheduled date of the Meeting, but in any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure event to a date that is not less than three (3) Business Days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an a Company Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Transaction Resolution by the Company Shareholders, the Yerbaé Company Board may, subject to compliance with Section 8.2or may cause the Company to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives6;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Company or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot SNDL a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes it has received a Superior Proposal and of the intention of the Yerbaé Board to approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Company Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company or its Representatives have provided to SNDL a copy of any proposed definitive agreement for the Superior Proposal;
(d) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot SNDL received the Superior Proposal NoticeNotice and the date on which SNDL received a copy of the definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vie) after the Matching Period, the Yerbaé Company Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Company Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement Transactions as proposed to be amended by Safety Shot SNDL under Section 4.4(b6.4(2)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Company Board shall review any offer made by Safety Shot under this Section 4.4(b) SNDL to amend the terms of this Agreement and the Arrangement Transactions in good faith faith, after consultation with outside legal and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Company Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé the Company shall negotiate in good faith with Safety Shot SNDL to make such amendments to the terms of this Agreement or and the Plan of Arrangement Transactions as would enable Safety Shot SNDL and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the Yerbaé foregoing the Company Board determines that such Company Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot SNDL and Yerbaé the Company and Safety Shot SNDL shall amend this Agreement to reflect such offer made by Safety Shot, SNDL and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Company Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Company Acquisition Proposal for the purposes of this Section 4.46.4, and Safety Shot shall be afforded a new provided that the Matching Period from in respect of such new Acquisition Proposal shall extend only until the later of the date on which Safety Shot end of the initial five (5) Business Day Matching Period and 36 hours after SNDL received the Superior Proposal Notice with respect to for the new Superior Proposal from YerbaéCompany Acquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e4) Nothing in this Agreement shall prohibit the Yerbaé Company Board from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an a Company Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal. Further, nothing in this Agreement shall prevent the Yerbaé Company Board from making any disclosure to the Yerbaé Company Shareholders if the Yerbaé Company Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Company Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Company Board shall be permitted to make such disclosure, the Yerbaé Company Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel6.4(1).
(f5) Any violation If the Company provides a Superior Proposal Notice to SNDL after a date that is less than five (5) Business Days before the Company Meeting, the Company shall be entitled to, and shall upon request from SNDL, postpone the Company Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the restrictions set forth Company Meeting (and, in this Section 4.4 by any event, prior to the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesOutside Date).
Appears in 1 contract
Sources: Implementation Agreement (SNDL Inc.)
Right to Match. 7.3.1 BMG covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless:
(a) If Yerbaé receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé BMG has been, and continues to be, in compliance complied with its obligations under this Article 4 in all respects Section 7.2 and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any Section 7.3 and has provided GSV with a copy of the Yerbaé Subsidiaries or any of their respective Representatives;
Superior Proposal (ii) and, if the Person making consideration proposed under the Acquisition Superior Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, includes non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot cash consideration, a written notice of from the determination of BMG Board setting out the Yerbaé Board value in financial terms that such Acquisition Proposal constitutes a Superior Proposal and of the intention of BMG Board, in consultation with the Yerbaé Board to enter into such definitive agreement with respect BMG Financial Advisor, determined in good faith should be ascribed to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”non-cash consideration);
(ivb) at least ten (10) full Business Days a period (the “Matching Response Period”) have of five (5) Business Days has elapsed from the date that is the later of (x) the date on which Safety Shot received GSV receives written notice from the BMG Board that the BMG Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement to proceed with the Superior Proposal, and (y) the date GSV receives a copy of the Superior Proposal Notice(and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the BMG Board setting out the value in financial terms that the BMG Board, in consultation with the BMG Financial Advisor, determined in good faith should be ascribed to such non-cash consideration) from the BMG Board that the BMG Board determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding agreement to proceed with the Superior Proposal;
(vc) during any Matching Period, Safety Shot if GSV has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer proposed to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to in accordance with Section 4.4(b);
(vi) after the Matching Period7.3.2, then, as required by Section 7.3.2, the Yerbaé BMG Board has shall have determined in good faith, after consultation with its the BMG Financial Advisor and outside legal counsel and financial advisorscounsel, that such the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(if applicable, compared d) BMG shall have terminated this Agreement pursuant to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)8.2.1(d)(i); and
(viie) prior BMG shall have previously paid or caused to be paid, or concurrently with entering into such definitive agreement pays or withdrawing causes to be paid, to GSV (or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(Bas GSV may direct by notice in writing) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during 7.3.2 During the Matching Response Period, Safety Shot GSV shall have the opportunityright, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such proposal wouldPlan of Arrangement. During the Response Period, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé BMG shall negotiate in good faith with Safety Shot GSV to enable GSV to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot BMG and GSV to proceed with the transactions contemplated by this Agreement on such amended terms. If Within five (5) Business Days (the Yerbaé Board determines that “Review Period”) of any such Acquisition Proposal would cease offer by GSV to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend the terms of this Agreement to reflect such offer made by Safety Shotand the Plan of Arrangement, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in including an increase in, or modification of, the Consideration aggregate Consideration, the BMG Board shall review and determine whether the Acquisition Proposal to which GSV is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by GSV to be amended. Such determination to be made by the BMG Board shall be communicated to GSV by the end of the Review Period. If the BMG Board determines that the Acquisition Proposal to which GSV is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by GSV to be amended, BMG shall enter into an amendment to this Agreement to give effect to such amendments and the BMG Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.5(b) by the prompt issuance of a press release to that effect.
7.3.3 Where BMG has provided GSV notice pursuant to Section 7.3.1(b) less than seven (7) calendar days prior to the BMG Meeting, if requested to do so by GSV, BMG shall postpone or value adjourn the BMG Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days after the date of such Consideration) notice; provided, however, that in the event that the BMG Meeting is so adjourned, the Meeting Deadline and the Outside Date shall be extended by the same number of days as the BMG Meeting has been adjourned.
7.3.4 Each successive amendment to be received by Yerbaé Shareholders or other material terms or conditions thereof any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot GSV shall be afforded a new Matching Response Period from and the later rights afforded in paragraph 7.3.2 in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéeach such Acquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal after the date hereof and prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Board may, subject : (A) authorize the Company to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Acquisition Proposal and (B) withdraw, modify, qualify or change in a manner adverse to the Purchaser its approval or recommendation of the Arrangement and recommend or approve an Acquisition Proposal that is a Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation confidentiality or similar agreement with Yerbaérestriction;
(iiiii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the good faith determination of the Yerbaé Board Board, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement, together with a copy of the definitive agreement with respect to such Superior Proposal and/or withdraw or modify for the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version disclosure of the proposed agreement value, expressed in dollars, that the Board has, in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under which such the Superior Proposal is proposed to be consummated (collectively, the “Superior Proposal Notice”);
(iviii) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(viv) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(viv) after if the Matching PeriodPurchaser has offered to amend this Agreement and the Arrangement under Section 5.4(b), the Yerbaé Board has determined in good faith, after consultation with its the Company’s financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(b));
(vi) the Company did not breach any provision of Section 5.1 in connection with the preparation or making of such Superior Proposal and the Company has been and continues to be in compliance with Article 5; and
(vii) prior to to, or concurrently with with, entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(a)(iii)(B) and pays Safety Shot the Company Termination FeeAmount to the Purchaser pursuant to Section 7.4.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (ai) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(a)(v) to amend the terms of this Agreement and the Arrangement in good faith in order to determine determine, in consultation with its financial and outside legal advisors, whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (bii) Yerbaé if it would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser, and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. Subject to the Company’s disclosure obligations under applicable Securities Laws: (A) the fact of the making of any such proposed amendments; and (B) each of the terms of any such proposed amendments, shall be kept strictly confidential and shall not be disclosed to any person (including without limitation, the person having made the Superior Proposal), other than the Company’s Representatives, without the Purchaser’s prior written consent.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or a modification ofto, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new an additional five-Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to the new Superior Proposal from YerbaéNotice.
(d) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an Acquisition Proposal constituting a Superior Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its legal counsel.
(e) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws Superior Proposal Notice to an Acquisition Proposal provided the Purchaser on a date that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review is less than 10 Business Days before the form and content of such disclosure Company Meeting, the Company may, and shall give reasonable consideration at the request of Purchaser, postpone the Company Meeting to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting (and, in any comments made by Safety Shot and its counsel. Furtherevent, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date).
(f) Any violation Neither the Company nor any of its Subsidiaries will become a party to any Contract with any person subsequent to the restrictions set forth date hereof that limits or prohibits the Company and/or any of its Subsidiaries from providing:
(i) or making available to the Purchaser and its affiliates and Representatives any information provided or made available to such person or its officers, directors, employees, consultants, advisors, agents or other Representatives (including solicitors, accountants, investment bankers and financial advisors) pursuant to any confidentiality agreement described in this Section 4.4 5.1; or
(ii) the Purchaser and its affiliates and Representatives with any other information required to be given to it by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of Company under this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesArticle 5.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board may, subject to compliance with Article 7 and Section 8.2, withdraw, amend, modify or qualify, or publicly propose or state an intention to withdraw, amend, modify or qualify, the Board Recommendation (an “Adverse Recommendation”) and/or authorize the Company to enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction, which has not been waived pursuant to Section 5.1(3);
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice (a “Superior Proposal Notice”) of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to effect an Adverse Recommendation and/or terminate this Agreement and authorize the Company to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal;
(d) the Yerbaé Board Recommendation, which written notice specifies Company has provided the material terms and conditions Purchaser a copy of such the proposed definitive agreement for the Superior Proposal and provides all supporting materials, including any financing documents, supplied to the most current version of Company in connection therewith by the proposed agreement under which such Person making the Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”)or its Representatives;
(ive) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure of the Board to authorize the Company to effect an Adverse Recommendation and/or terminate this Agreement and enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under Law; and
(viih) prior to or concurrently concurrent with the entering into of such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeePayment pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunityCompany may approve for such purpose, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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; Proposal and (b) Yerbaé shall if the Board determines that such Acquisition Proposal would be expected to cease to be a Superior Proposal as a consequence of acceptance of such offer, the Company shall, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend execute and deliver an amendment to this Agreement negotiated in accordance with the preceding sentence to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release from time to time at the reasonable request of the Purchaser and after any Acquisition Proposal which that is publicly announced is determined by the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an such Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser after a date that is less than 10 Business Days before the Yerbaé BoardCompany Meeting, acting in good faith and upon the advice of its outside legal and financial advisors, Company shall have determined either proceed with or shall adjourn or postpone the Company Meeting to a date that is not more than 10 Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselCompany Meeting.
(f6) Any The Company shall advise its Subsidiaries and their respective Representatives of the prohibitions set out in this Article 5 and any violation of the restrictions set forth in this Section 4.4 Article 5 by the Yerbaé Company, its Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ their respective Representatives shall be is deemed to be a breach of this Section 4.4 Article 5 by Y▇▇▇▇▇the Company. Furthermore, Yerbaé the Company shall be responsible for any breach of this Section 4.4 Article 5 by the Yerbaé it, its Subsidiaries and its and their respective RepresentativesRepresentatives excluding any Purchaser Party Representative.
Appears in 1 contract
Sources: Arrangement Agreement (Patheon Inc)
Right to Match. (a) If Yerbaé Notwithstanding Section 6.1(a) or any other provision of this Agreement to the contrary, if after the date hereof Kimber or any of its Representatives receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that was not solicited after the Yerbaé date hereof in contravention of Section 6.1(a) Kimber and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives for the purposes of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines, in good faith after consultation with its outside legal counsel and financial and legal advisors, constitutes that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal:
(A) furnish information with respect to Kimber and the Subsidiaries to the person making such Acquisition Proposal and its Representatives, provided that (A) Kimber first enters into a confidentiality agreement with such person, that is no less favourable to Kimber than the Confidentiality Agreement and (B) Kimber sends a copy of such agreement to Invecture promptly following its execution and Invecture is promptly provided with the information provided to such person; and
(B) engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1(a) or any other provision of this Agreement, Kimber may terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal prior to obtaining completion of the Yerbaé Shareholder ApprovalOffer and recommend or approve an Acquisition Proposal, including in each case, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposaldate hereof, if and only if:if (with the exception of a confidentiality and standstill agreement described in Section 6.2(b), the execution of which shall not be subject to the conditions of this Section 6.2(b)):
(i) Yerbaé Kimber and each of its Representatives has been, and continues to be, in compliance complied with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesSection 6.1;
(ii) the Person making the Acquisition Proposal was not restricted from making Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaéconstitutes a Superior Proposal;
(iii) Yerbaé Kimber has (A) delivered to Safety Shot a written notice to Invecture of the determination of the Yerbaé Board of Directors that such the Acquisition Proposal constitutes is a Superior Proposal and of the intention of the Yerbaé Board of Directors to accept, approve, recommend or enter into such definitive an agreement with in respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”)) and (B) has provided Invecture with a copy of the document containing such Acquisition Proposal;
(iv) at least ten (10) full Business Days (the “Matching Period”) five business days have elapsed from since the later of the date on which Safety Shot Invecture received a copy of the Superior Proposal Notice and the date on which Invecture received a copy of the document containing such Acquisition Proposal (such five business day period, the “Right to Match Period”) and, for greater certainty, the Right to Match Period shall expire at 4:00 p.m. (Vancouver time) on the fifth business day following the day Invecture received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had if Invecture and the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer Offeror have offered to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of the Offer and this Agreement that Safety Shot proposes during the Right to Match Period pursuant to Section 4.4(b6.2(c);
(vi) after the Matching Period, the Yerbaé Board of Directors has determined in good faithdetermined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute be a Superior Proposal (if applicable, compared to when assessed against the terms of the Arrangement Offer as it is proposed to be amended by Safety Shot under Section 4.4(b))as at the termination of the Right to Match Period; and
(viivi) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Kimber terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.1(k) and pays Safety Shot the Termination FeePayment pursuant to Section 8.2(a)(ii).
(bc) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Right to Match Period, Safety Shot shall Invecture and the Offeror will have the opportunity, but not the obligation, to propose offer to amend the terms of the Offer and this Agreement. Kimber agrees that, including an increase inif requested by Invecture, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) it will negotiate with Invecture in good faith to amend the terms of the Offer and this Agreement as would enable them to proceed with the Offer and any Contemplated Transactions on such adjusted terms. The Board of Directors will review any such offer by Invecture and the Arrangement Offeror to amend the terms of the Offer and this Agreement in order to determine, in good faith in order the exercise of its fiduciary duties, whether Invecture and the Offeror’s offer to determine whether such proposal wouldamend the Offer and this Agreement, upon its acceptance, would result in the applicable Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé shall negotiate in good faith with Safety Shot Proposal when assessed against the Offer as it is proposed to make such amendments be amended as at the termination of the Right to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended termsMatch Period. If the Yerbaé Board of Directors determines that such the applicable Acquisition Proposal would cease to be a Superior ProposalProposal when assessed against the Offer as it is proposed to be amended as at the termination of the Right to Match Period, Yerbaé Invecture and the Offeror will amend the terms of the Offer and Kimber, Invecture and the Offeror shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend enter into an amendment to this Agreement reflecting the offer by Invecture and the Offeror to reflect such offer made by Safety Shot, amend the terms of the Offer and shall take and cause to be taken all such actions as are necessary to give effect to the foregoingthis Agreement.
(cd) The Board of Directors will promptly reaffirm its recommendation of the Offer by press release after (i) any Acquisition Proposal is publicly announced or made and the Board of Directors determines it is not a Superior Proposal or (ii) the Board of Directors determines that a proposed amendment to the terms of the Offer pursuant to Section 6.2(c) would result in an Acquisition Proposal not being a Superior Proposal when assessed against the Offer as it is proposed to be amended as at the termination of the Right to Match Period, and Invecture has so amended the terms of the Offer in accordance with Section 6.2(c). Invecture and the Offeror will be given a reasonable opportunity to review and comment on the form and content of any such press release.
(e) Each successive amendment amendment, change or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration (or value of such Consideration) consideration to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall will constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé6.1.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(ef) Nothing in this Agreement shall prohibit prevent the Yerbaé Board of Directors from responding through a directors’ circular or otherwise as required by Applicable Securities applicable Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal. Further, nothing in this Agreement shall prevent the Yerbaé Board of Directors from making any disclosure to the Yerbaé Shareholders securityholders of Kimber if the Yerbaé BoardBoard of Directors, acting in good faith and upon the advice of its outside legal and financial advisorscounsel, shall have first determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board of Directors or such disclosure is otherwise required under Applicable Law; applicable Laws, provided, however, that, notwithstanding that the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board of Directors shall not be permitted to make a Change in Recommendation, of Recommendation other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel6.2(b).
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Securityholders, the Yerbaé Board may, subject to compliance with Section 8.2, make a Change in Recommendation and enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation use of information, permitted purpose or similar agreement with Yerbaérestriction or covenant in an existing confidentiality or similar agreement;
(iiib) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 5 (other than de minimis breaches);
(c) the Company has delivered to Safety Shot a the Purchaser written notice of its receipt of such Acquisition Proposal and of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to make a Change in Recommendation and enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for such Acquisition Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity right (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after if the Matching PeriodPurchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2), the Yerbaé Board has determined in good faith, after consultation with its the Company’s outside legal counsel counsels and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2));
(h) the Board has determined in good faith, after consultation with the Company’s outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Acquisition Proposal in order to properly discharge its fiduciary duties; and
(viii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying with respect to such Acquisition Proposal, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose:
(a) the Purchaser shall have the right (but not the obligation) to offer to amend this Agreement and the Arrangement;
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) and Section 5.4(2)(a) to amend the terms of this Agreement and the Arrangement in good faith in order to determine determine, after consultation with the Company’s legal counsels and financial advisors, whether such proposal offer made by the Purchaser would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and and
(bc) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior ProposalProposal following the offer made by the Purchaser, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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) consideration to be received by Yerbaé Shareholders the Securityholders or any other material terms or conditions thereof amendment to such Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the new Superior Proposal Notice with respect to and all of the material set forth in Section 5.4(1)(d) for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel counsels and financial advisors with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsellegal counsels and financial advisors.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser after a date that is less than seven (7) Business Days before the Yerbaé BoardCompany Meeting, acting in good faith the Company shall be entitled to, and upon the advice of its outside legal Purchaser and financial advisorsthe Guarantor shall be entitled to require the Company to, shall have determined adjourn or postpone the Company Meeting to a date that is not more than 15 Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding Company Meeting but in any event the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meeting shall not be permitted postponed to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity date which would prevent the Effective Date from occurring on or prior to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution, the Yerbaé Board may, subject may make a Change in Recommendation or may cause the Company to compliance with Section 8.2, terminate this Agreement and enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal (an “Alternative Acquisition Agreement”), if and only if:
(ia) Yerbaé has been, and continues to be, in compliance with such Superior Proposal did not result from a breach by the Company of its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respect;
(iib) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purpose or similar agreement with Yerbaérestriction;
(iiic) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to make a Change in Recommendation or to terminate this Agreement to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendationan Alternative Acquisition Agreement, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version including a copy of the proposed agreement under which such Superior Proposal is proposed to be consummated Alternative Acquisition Agreement if applicable (the “Superior Proposal Notice”);; 74
(ivd) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot the Purchaser received the Superior Proposal Notice;
(ve) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and financial advisorsadvisor(s), 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 Safety Shot the Purchaser under Section 4.4(b5.4(2))) and failure to take the relevant action would be inconsistent with its fiduciary duties; and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying an Alternative Acquisition Agreement the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.1(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 7.3(2) .
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith and in consultation with outside legal and financial advisor(s) in order to determine whether such proposal offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement Transactions on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the Purchaser shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéthree Business Days.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly (and in any event with five Business Days) reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is publicly announced is determined to not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.release. 75
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser on a date that is less than five Business Days before the Yerbaé BoardCompany Meeting, the Company shall either proceed with or shall postpone the Company Meeting, as directed by the Purchaser acting in good faith and upon reasonably, to a date that is not more than five Business Days after the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding Company Meeting but in any event the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meeting shall not be permitted postponed to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity date which would prevent the Effective Date from occurring on or prior to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Shareholders, the Yerbaé Board (or any committee thereof) may, subject to compliance with Article 8 and Section 8.28.3, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, withdraw the Board Recommendation and make a Change in Recommendation, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(ii) Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé7;
(iii) Yerbaé Company has delivered to Safety Shot Acquiror a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value in financial terms and conditions of offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(iv) Company has provided Acquiror a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to Company in connection therewith;
(v) at least ten (10) full five Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot Acquiror received the Superior Proposal NoticeNotice and the date on which Acquiror received all of the materials set forth in Section 7.4(a)(iv);
(vvi) during any Matching Period, Safety Shot Acquiror has had the opportunity (but not the obligation), in accordance with Section 4.4(b7.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vivii) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Acquiror under Section 4.4(b7.4(b)); and
(viiviii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.2(d) and pays Safety Shot the Termination FeeFee pursuant to Section 8.3.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Company may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot Acquiror under this Section 4.4(b7.4(a) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé Company shall negotiate in good faith with Safety Shot Acquiror to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Acquiror to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Company shall promptly so advise Safety Shot Acquiror and Yerbaé Company and Safety Shot Acquiror shall amend this Agreement to reflect such offer made by Safety ShotAcquiror, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.47.4, and Safety Shot Acquiror shall be afforded a new three Business Day Matching Period from the later of the date on which Safety Shot Acquiror received the Superior Proposal Notice and the date on which Acquiror received all of the materials set forth in Section 7.4(a)(iv) with respect to the new Superior Proposal from YerbaéCompany.
(d) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b7.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé Company shall provide Safety Shot Acquiror and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot Acquiror and its counsel.
(e) Nothing If Company provides a Superior Proposal Notice to Acquiror on a date that is less than 10 Business Days before the Special Meeting, Acquiror will be entitled to require Company to adjourn or postpone the Special Meeting in accordance with the terms of this Agreement shall prohibit to a date specified by Acquiror that is not more than 10 days after the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal scheduled date of the Special Meeting, provided that Yerbaé in no event shall provide Safety Shot and its counsel with such adjourned or postponed meeting be held on a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure date that is less than five Business Days prior to the Yerbaé Shareholders if Outside Date. If a Matching Period would not terminate before the Yerbaé Boarddate fixed for the Special Meeting, acting in good faith and upon Company shall adjourn or postpone the advice of its outside legal and financial advisors, shall have determined Special Meeting to a date that is at least five Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties expiration of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselapplicable Matching Period.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé the Seller or the Seller Parent or their respective Representatives receives an a bona fide Acquisition Proposal that the Yerbaé Board determines, board of directors of the Seller Parent determines in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé satisfaction of the Seller Parent Shareholder ApprovalApproval Condition, the Yerbaé Board board of directors of the Seller Parent may, subject to compliance with Section 8.2Clause 5.10, (i) withdraw the Seller Parent Recommendation and/or (ii) enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, (subject to Clause 5.11(a)(iii)), if and only if:
(i) Yerbaé has beenthe Seller and the Seller Parent (as applicable) have delivered to the Purchaser a written notice of the intention of the board of directors of the Seller Parent to take such action with respect to such Superior Proposal, and continues such notice contains a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to bethe Seller and/or the Seller Parent in connection therewith along with details regarding the value and financial terms that the board of directors of the Seller Parent, in compliance consultation with its obligations financial advisers, has determined should be ascribed to any non cash consideration offered under this Article 4 in all respects and such Acquisition Acquisition, (the Superior Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesNotice);
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot the Purchaser received the Superior Proposal Notice;
(viii) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(bClause 5.11(b), to offer to amend this Agreement and the Arrangement transactions set out herein in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(viiv) after the Matching Period, the Yerbaé Board board of directors of the Seller Parent 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 (if applicable, compared to the terms of the Arrangement Agreement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(bClause 5.11(b)); and
(viiv) prior to or concurrently with entering into such definitive agreement the Seller or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Purchaser terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination FeeClause 13.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not Seller and/or the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodSeller Parent may approve in writing for such purpose: (a) the Yerbaé Board board of directors of the Seller Parent shall review any offer made by Safety Shot the Purchaser under this Section 4.4(bClause 5.11(a)(iii) to amend the terms of this Agreement and the Arrangement transactions contemplated herein in good 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) Yerbaé the Seller and the Seller Parent (as applicable) shall make their respective Representatives reasonably available to negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with and the transactions contemplated by this Agreement on herein such amended termsthat it would cause such Superior Proposal to no longer constitute a Superior Proposal. If the Yerbaé Board board of directors of the Seller Parent determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Seller and the Seller Parent shall promptly so advise Safety Shot the Purchaser as soon as reasonably practicable and, to the extent applicable, the Seller Parent, the Seller and Yerbaé and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall (to the extent legally permissible and taking into account applicable fiduciary duties) take and cause to be taken all such actions as are reasonably necessary to give effect to the foregoing.
(c) Each successive material amendment or modification to any Acquisition Superior Proposal that results in an a material increase in, or material modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the shareholders of the Seller Parent or other material terms or conditions thereof shall constitute a new Acquisition Superior Proposal for the purposes of this Section 4.4Clause 5.11, and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect relating to the new Superior Proposal from Yerbaéthe Seller Parent.
(d) At The board of directors of the written request of Safety Shot, the Yerbaé Board Seller Parent shall promptly reaffirm the Yerbaé Board Seller Parent Recommendation by press release as soon as reasonably practicable after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board board of directors of the Seller Parent determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(bClause 5.11(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Seller and/or the Seller Parent shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure any press releases and shall give take into consideration all reasonable consideration amendments to any comments made such press release as reasonably requested by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot Purchaser and its counsel (provided such amendments are provided by the Purchaser reasonably in advance of publication of any such press releases).
(e) If the Seller Parent provides a Superior Proposal Notice to the Purchaser on a date that is less than 10 Business Days before the meeting of the shareholders of the Seller Parent convened to approve the Proposed Transaction, the Seller Parent shall either proceed with or, to the extent reasonably practicable and legally permissible, shall postpone such shareholders meeting to a reasonable opportunity to review date that is not more than 10 Business Days after the form and content scheduled date of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselshareholders meeting.
(f) Any The Seller Parent shall advise the Target Companies and their respective Representatives of the prohibitions set out in this Clause 5 and any violation of the restrictions set forth in this Section 4.4 Clause 5.11 by the Yerbaé Subsidiaries or Yerbaé’s Seller or the Yerbaé Subsidiaries’ Seller Parent or their respective Representatives shall be is deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesClause 5.11.
Appears in 1 contract
Sources: Share Purchase Agreement
Right to Match. (a) i. If Yerbaé the Company receives an Acquisition Proposal from any Person or group of Persons, other than the Investor or any of its Affiliates (a “Potential Acquiror”), during the Restricted Period, pursuant to which the Company has negotiated a form of definitive agreement that the Yerbaé Board determineshas, in good faith after consultation with its outside financial and legal advisorsfaith, constitutes a Superior Proposal prior determined that it would be prepared to obtaining approve (the Yerbaé Shareholder Approval“Triggering Proposal”), the Yerbaé Board may, subject to compliance with Section 8.2, Company may enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, Acquisition Proposal if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of 1. the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Investor a written notice of the determination of the Yerbaé Board that such Acquisition the Triggering Proposal constitutes a Superior an Acquisition Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Triggering Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the an “Superior Acquisition Proposal Notice”);
(iv) 2. the Company has provided the Investor with a copy of the proposed definitive agreement for the Triggering Proposal and all supporting materials supplied to the Company in connection therewith;
3. at least ten (10) full five Business Days have elapsed from the date that is the later of the date on which the Investor received the Acquisition Proposal Notice and the date on which the Investor received all of the materials set forth in Section 7.1(a)(ii) (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice);
(v) 4. during any the Matching Period, Safety Shot the Investor has had the an opportunity (but not the obligation), ) in accordance with Section 4.4(b7.1(b), to offer to amend this Agreement and the Arrangement in order for such make an Acquisition Proposal to cease the Company that is intended to be a Superior Matching Proposal and Yerbaé has negotiated, and caused its Representatives (the “Right to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(bMatch”);
(vi) 5. after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and financial advisorscounsel, that such it has not received an Acquisition Proposal continues to constitute from the Investor that constitutes a Superior Matching Proposal (if applicable, compared and the Company has provided written notice of such determination to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b))Investor; and
(vii6. if the Investor receives the notice described in Section 7.1(a)(v) prior despite having made an Acquisition Proposal that was intended to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, be a Matching Proposal during the Matching Period, Safety Shot shall have (A) the opportunity, but not Investor fails to provide to the obligation, Company within 24 hours following receipt of such notice (the “Cure Period”) with an Acquisition Proposal that is intended to propose to amend the terms of this Agreement, including an increase inbe a Matching Proposal, or modification of(B) the Board has determined in good faith, after consultation with outside counsel, that any Acquisition Proposal provided during the ConsiderationCure Period does not constitute a Matching Proposal.
ii. During the Matching Period or Cure Period, or such longer period as the Company may approve in writing for such purpose: (ai) the Yerbaé Board shall review any offer Acquisition Proposal made by Safety Shot the Investor or any of its Affiliates under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement 7.1(a)(iv), in good faith in order consultation with legal counsel, to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting is a Superior Proposal ceasing to be a Superior Matching Proposal; and (bii) Yerbaé if the Board determines that such Acquisition Proposal is a Matching Proposal, the Company shall negotiate in good faith with Safety Shot the Investor to make enter into a definitive agreement in respect of such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Matching Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) iii. Each successive amendment or modification to any Acquisition Triggering Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.1 and Safety Shot the Investor shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shotin connection therewith, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding Section 7.1(a)(iii) above, the Yerbaé Board duration of such Matching Period shall be permitted three Business Days rather than five Business Days.
iv. If the Investor does not deliver a Matching Proposal to make such disclosurethe Company within the Matching Period or Cure Period, then the Company shall be entitled for a period of ten days after the expiry of the applicable Matching Period and Cure Period to enter into a definitive agreement in respect of the Triggering Proposal.
v. Upon the expiry of the Restricted Period, the Yerbaé Board Right to Match granted to the Investor pursuant to this Section 7.1 and the obligations of the Company in connection therewith shall not terminate and be permitted of no further force or effect.
vi. In the event that none of the Investor or its Affiliates submits a Matching Proposal to make a Change the Company pursuant to Section 7.1(a)(iv) or Section 7.1(a)(vi), then, for so long as the definitive agreement resulting from the Triggering Proposal remains in Recommendationeffect and the transaction represented thereby is supported by the Board, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure Investor shall, and shall give reasonable cause its Affiliated Transferees to (i) vote any Shares and New Preferred Shares beneficially owned, or over which control or direction is exercised, by the Investor or its Affiliated Transferees in favour of or abstain from voting on any resolution to approve the transaction, or any resolution required to facilitate the transaction, resulting from, and on terms materially consistent with (including that there be no decrease in the amount of any consideration payable for the Shares and New Preferred Shares), the Triggering Proposal; and (ii) tender any Shares and New Preferred Shares, as applicable, beneficially owned, or over which control or direction is exercised, by the Investor or its Affiliated Transferees, to any comments made by Safety Shot take-over bid, tender offer, exchange offer or other similar offer resulting from, and its counselon terms materially consistent with (including that there be no decrease in the amount of any consideration payable for the Shares and New Preferred Shares), the Triggering Proposal.
(f) Any violation vii. Upon receipt of an Acquisition Proposal, the Company shall promptly notify the Potential Acquiror of the restrictions rights and obligations of the Company and the Investor set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives7.1.
Appears in 1 contract
Sources: Share Subscription Agreement (Skyline Champion Corp)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board may, subject to compliance with Section 7.2 and Section 8.2, enter into a definitive written agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill use, business purpose or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement with respect to the Superior Proposal;
(e) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement with respect to the Superior Proposal from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board has determined in good faith, faith (i) 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 this Agreement and the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) after consultation with its outside legal counsel, that the failure for the Board to enter into such definitive agreement with respect to such Superior Proposal would be inconsistent with the Board’s fiduciary duties to the Company; and
(viih) prior to or the Company concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and prior to or concurrently with such termination pays Safety Shot the Company Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser, and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is determined to not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or and the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting, as directed by the Purchaser, to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Article 5 shall prohibit prevent the Yerbaé Board from responding through complying with Section 2.17 of National Instrument 62-104 - Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ circular or otherwise as required by Applicable Securities Laws to in respect of an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé shall provide Safety Shot and its counsel however, for greater certainty, the Board is not permitted to shorten the deposit period unilaterally with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration respect to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure Acquisition Proposal which is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counseltakeover bid.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé Cangold receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes or may constitute a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Cangold Shareholders, the Yerbaé Cangold Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Acquisition Proposal, that is a Superior Proposal, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(ii) Cangold has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé5;
(iii) Yerbaé Cangold has delivered to Safety Shot Great Panther a written notice of the determination of the Yerbaé Cangold Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Cangold Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Cangold Board regarding the value and financial terms and conditions of that the Cangold Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) Cangold has provided Great Panther a copy of the proposed definitive agreement for the Superior Proposal;
(v) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot Great Panther received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from Cangold;
(vvi) during any Matching Period, Safety Shot Great Panther has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vivii) after the Matching Periodif applicable, the Yerbaé Cangold Board has determined in good faith, after consultation with its Cangold’s outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Great Panther under Section 4.4(b5.4(b));
(viii) the Cangold Board has determined in good faith, after consultation with Cangold’s outside legal counsel that it is necessary for the Cangold Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties;
(ix) such Superior Proposal does not provide for the payment of any break, termination or other fees or expenses to any person in the event that Cangold completes the transactions with Great Panther contemplated by this Agreement or any other similar transaction with Great Panther agreed to prior to the termination of this Agreement; and
(viix) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Cangold terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(a)(iii)(B) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Cangold may approve in writing for such purpose: (a) the Yerbaé Cangold Board shall review any offer made by Safety Shot Great Panther under this Section 4.4(b5.4(a)(vi) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé Cangold shall negotiate in good faith with Safety Shot Great Panther to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Great Panther to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Cangold Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Cangold shall promptly so advise Safety Shot Great Panther, and Yerbaé Cangold and Safety Shot Great Panther shall amend this Agreement to reflect such offer made by Safety ShotGreat Panther, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.3, and Safety Shot Great Panther shall be afforded a new ten (10) Business Day Matching Period from the later of the date on which Safety Shot Great Panther received the Superior Proposal Notice with respect to and a copy of the definitive agreement for the new Superior Proposal from YerbaéCangold.
(d) At the written request of Safety Shot, the Yerbaé The Cangold Board shall promptly reaffirm the Yerbaé Cangold Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Cangold Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé Cangold shall provide Safety Shot Great Panther and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot Great Panther and its counsel.
(e) If Cangold provides a Superior Proposal Notice to Great Panther after a date that is less than ten (10) Business Days before the Cangold Meeting, Cangold shall either proceed with or shall postpone the Cangold Meeting, as directed by Great Panther to a date that is not more than ten (10) Business Days after the scheduled date of the Cangold Meeting.
(f) Nothing contained in this Section 5.3 shall limit in any way the obligation of Cangold to convene and hold the Cangold Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(g) Nothing contained in this Article 5 shall prohibit the Yerbaé Cangold Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé Cangold shall provide Safety Shot Great Panther and its outside legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give make all reasonable consideration to any comments made amendments as requested by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot Great Panther and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé the Target receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder Approval, the Yerbaé Board may, or may cause the Target to, subject to compliance with Section 8.28.2(c), enter into a definitive agreement with respect to such Superior Proposal or make a Change in Recommendation with in respect to of such Superior Proposal, if and only if:
(i) Yerbaé the Target has been, and continues to be, in compliance with its obligations under this Article 4 Sections 5.1, 5.2 and 5.3 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Target or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement or to make a Change in Recommendation with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iii) the Target or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(iv) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vi) after the Matching Period, the Yerbaé Board has determined in good faith, faith (i) 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 Transaction as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(b))) and (ii) after consultation with its outside legal counsel, that the failure to take the relevant action would be inconsistent with its fiduciary duties; and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board making a Change in Recommendation, Yerbaé the Target terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(a)(iii)(B) and pays Safety Shot the Termination FeeAmount pursuant to Section 8.2(c).
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodTarget may approve in writing for such purpose: (ai) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(a)(v) to amend the terms of this Agreement and the Arrangement in good 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 (bii) Yerbaé the Target shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement Transaction on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Target shall promptly so advise Safety Shot the Purchaser and Yerbaé the Target and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shot, the Purchaser and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or amends or modifies other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) day Matching Period from the date that is the later of the date on which Safety Shot received the Superior Proposal Notice with respect to Purchaser receives the new Superior Proposal from YerbaéNotice and the date on which the Purchaser received a copy of the documentation referred to in Section 5.4(a)(iii) above with respect to such new Superior Proposal.
(d) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Target shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e) If the Target provides a Superior Proposal Notice to the Purchaser on a date that is less than five (5) Business Days before the Target Meeting, the Target shall either proceed with or shall postpone the Target Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than five (5) Business Days after the scheduled date of the Target Meeting but in any event the Target Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(f) Nothing contained in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular making any disclosure to any securityholders of the Target prior to the Effective Time if, in the good faith judgment of the Board, after consultation with outside legal counsel, failure to make such disclosure would reasonably be expected to be inconsistent with the Board’s exercise of its fiduciary duties or such disclosure is otherwise as required by Applicable Securities Laws to an Acquisition Proposal applicable Law; provided that Yerbaé (i) the Target shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of such any disclosure to be made pursuant to this Section 5.4(f), and shall give reasonable consideration to any comments made by Safety Shot the Purchaser and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal counsel, and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, (ii) notwithstanding the Yerbaé Board shall be permitted to make such disclosureforegoing, the Yerbaé Board shall not be permitted to make a Change in Recommendation, Recommendation other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselthis Article 5.
(fg) Any violation of the restrictions set forth Nothing contained in this Agreement shall prevent the Board, at any time prior to obtaining the Required Shareholder Approval, from making, in good faith and after consultation with its outside legal counsel, a Change in Recommendation resulting solely from the occurrence of a Purchaser Material Adverse Effect (a “Specified Change in Recommendation”). For greater certainty, a Specified Change in Recommendation shall not give rise to a termination right pursuant to Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives 7.2(a)(iv)(B) nor shall be deemed to be it constitute a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesTermination Amount Event.
Appears in 1 contract
Sources: Transaction Agreement (National Bank of Canada /Fi/)
Right to Match. (a) If Yerbaé True Gold receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the True Gold Securityholders, the Yerbaé True Gold Board may, subject to compliance with Section 8.28.3, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(ii) True Gold has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé7;
(iii) Yerbaé True Gold has delivered to Safety Shot Endeavour a written notice of the determination of the Yerbaé True Gold Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé True Gold Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the True Gold Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(iv) True Gold has provided Endeavour with a copy of the proposed definitive agreement for the Superior Proposal, together with a summary of the factors used by the True Gold Board to conclude it is a Superior Proposal, and in the case of a proposal that includes non- cash consideration, the value or range of values attributed by the True Gold Board, in good faith, to such non-cash consideration, after consultation with its financial advisers;
(v) at least ten six (106) full Business Days calendar days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot Endeavour received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from True Gold;
(vvi) during any Matching Period, Safety Shot Endeavour has had the opportunity (but not the obligation), in accordance with Section 4.4(b7.3(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vivii) after if Endeavour has offered to amend this Agreement and the Matching PeriodArrangement under Section 7.3(b), the Yerbaé True Gold Board has determined in good faith, after consultation with its True Gold's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Endeavour under Section 4.4(b7.3(b));
(viii) the True Gold Board has determined in good faith, after consultation with True Gold's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viiix) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé True Gold terminates this Agreement pursuant to Section 8.1(a)(vii)(BSubsection 8.2(a)(iv)(B) and pays Safety Shot the Termination FeeFee pursuant to Section 8.3.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as True Gold may approve in writing for such purpose: (a) the Yerbaé True Gold Board shall review any offer made by Safety Shot Endeavour under this Section 4.4(b7.3(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé True Gold shall negotiate in good faith with Safety Shot Endeavour to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Endeavour to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé True Gold Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé True Gold shall promptly so advise Safety Shot Endeavour and Yerbaé True Gold and Safety Shot Endeavour shall amend this Agreement to reflect such offer made by Safety ShotEndeavour, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.47.3, and Safety Shot Endeavour shall be afforded a new six (6) calendar day Matching Period from the later of the date on which Safety Shot Endeavour received the Superior Proposal Notice with respect to and a copy of the proposed definitive agreement for the new Superior Proposal from YerbaéTrue Gold.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be If True Gold provides a Superior Proposal Notice to Endeavour after a date that is publicly announced or publicly disclosed or less than 10 Business Days before the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties date of the Yerbaé Board True Gold Meeting, True Gold shall either proceed with or such disclosure shall postpone the True Gold Meeting, as directed by Endeavour acting reasonably, to a date that is otherwise required under Applicable Law; provided, however, that, notwithstanding not more than 10 Business Days after the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation scheduled date of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesTrue Gold Meeting.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal from any Person or group of Persons, other than the Investor or any of its Affiliates (a “Potential Acquiror”), during the Restricted Period, pursuant to which the Company has negotiated a form of definitive agreement that the Yerbaé Board determineshas, in good faith after consultation with its outside financial and legal advisorsfaith, constitutes a Superior Proposal prior determined that it would be prepared to obtaining approve (the Yerbaé Shareholder Approval“Triggering Proposal”), the Yerbaé Board may, subject to compliance with Section 8.2, Company may enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, Acquisition Proposal if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Investor a written notice of the determination of the Yerbaé Board that such Acquisition the Triggering Proposal constitutes a Superior an Acquisition Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Triggering Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the an “Superior Acquisition Proposal Notice”);
(ivii) the Company has provided the Investor with a copy of the proposed definitive agreement for the Triggering Proposal and all supporting materials supplied to the Company in connection therewith;
(iii) at least ten (10) full five Business Days have elapsed from the date that is the later of the date on which the Investor received the Acquisition Proposal Notice and the date on which the Investor received all of the materials set forth in Section 7.1(a)(ii) (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice);
(viv) during any the Matching Period, Safety Shot the Investor has had the an opportunity (but not the obligation), ) in accordance with Section 4.4(b7.1(b), to offer to amend this Agreement and the Arrangement in order for such make an Acquisition Proposal to cease the Company that is intended to be a Superior Matching Proposal and Yerbaé has negotiated, and caused its Representatives (the “Right to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(bMatch”);
(viv) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and financial advisorscounsel, that such it has not received an Acquisition Proposal continues to constitute from the Investor that constitutes a Superior Matching Proposal (if applicable, compared and the Company has provided written notice of such determination to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b))Investor; and
(viivi) prior if the Investor receives the notice described in Section 7.1(a)(v) despite having made an Acquisition Proposal that was intended to be a Matching Proposal during the Matching Period, (A) the Investor fails to provide to the Company within 24 hours following receipt of such notice (the “Cure Period”) with an Acquisition Proposal that is intended to be a Matching Proposal, or concurrently (B) the Board has determined in good faith, after consultation with entering into such definitive agreement or withdrawing or modifying outside counsel, that any Acquisition Proposal provided during the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination FeeCure Period does not constitute a Matching Proposal.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period or Cure Period, or such longer period as the Company may approve in writing for such purpose: (ai) the Yerbaé Board shall review any offer Acquisition Proposal made by Safety Shot the Investor or any of its Affiliates under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement 7.1(a)(iv), in good faith in order consultation with legal counsel, to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting is a Superior Proposal ceasing to be a Superior Matching Proposal; and (bii) Yerbaé if the Board determines that such Acquisition Proposal is a Matching Proposal, the Company shall negotiate in good faith with Safety Shot the Investor to make enter into a definitive agreement in respect of such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Matching Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Triggering Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.1 and Safety Shot the Investor shall be afforded a new Matching Period from in connection therewith, provided that, notwithstanding Section 7.1(a)(iii) above, the later duration of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaésuch Matching Period shall be three Business Days rather than five Business Days.
(d) At If the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Investor does not deliver a Matching Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms Company within the Matching Period or Cure Period, then the Company shall be entitled for a period of this Agreement or ten days after the Plan expiry of Arrangement as contemplated under Section 4.4(b) would result the applicable Matching Period and Cure Period to enter into a definitive agreement in an Acquisition Proposal no longer being a Superior respect of the Triggering Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit Upon the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws expiry of the Restricted Period, the Right to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Match granted to the Yerbaé Shareholders if Investor pursuant to this Section 7.1 and the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties obligations of the Yerbaé Board Company in connection therewith shall terminate and be of no further force or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counseleffect.
(f) Any violation In the event that none of the restrictions Investor or its Affiliates submits a Matching Proposal to the Company pursuant to Section 7.1(a)(iv) or Section 7.1(a)(vi), then, for so long as the definitive agreement resulting from the Triggering Proposal remains in effect and the transaction represented thereby is supported by the Board, the Investor shall, and shall cause its Affiliated Transferees to (i) vote any Shares and New Preferred Shares beneficially owned, or over which control or direction is exercised, by the Investor or its Affiliated Transferees in favour of or abstain from voting on any resolution to approve the transaction, or any resolution required to facilitate the transaction, resulting from, and on terms materially consistent with (including that there be no decrease in the amount of any consideration payable for the Shares and New Preferred Shares), the Triggering Proposal; and (ii) tender any Shares and New Preferred Shares, as applicable, beneficially owned, or over which control or direction is exercised, by the Investor or its Affiliated Transferees, to any take-over bid, tender offer, exchange offer or other similar offer resulting from, and on terms materially consistent with (including that there be no decrease in the amount of any consideration payable for the Shares and New Preferred Shares), the Triggering Proposal.
(g) Upon receipt of an Acquisition Proposal, the Company shall promptly notify the Potential Acquiror of the rights and obligations of the Company and the Investor set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives7.1.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder Approval, the Yerbaé Board maymay (based upon, amongst other things, the recommendation of the Special Committee), subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal or make a Change in Recommendation with in respect to of such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement and make a Change in Recommendation with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company has provided the Purchaser a copy of the definitive agreement for the Superior Proposal and all other material agreements to be entered into in connection therewith;
(d) at least ten four (104) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials referred to in Section 5.4(1)(c);
(ve) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its the Company’s outside legal counsel and financial advisorsadvisers, (i) that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) that the failure by the Board to cause the Company to enter into a definitive agreement and make a Change in Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) [Superior Proposal] and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in its sole discretion in writing for such purpose: (a) the Yerbaé Purchaser shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal and the Board shall (and Special Committee) shall, in consultation with the Company’s outside legal counsel and financial advisers, review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé if the Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines (based upon, inter alia, the recommendation of the Special Committee) that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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) consideration to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new full three (3) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials referred to in Section 5.4(1)(c) with respect to the each new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm (subject to Section 5.1(1)(d)) the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all give reasonable amendments consideration to such press release as requested any comments provided by Safety Shot the Purchaser and its outside legal counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than ten (10) Business Days before the Meeting, the Company shall be entitled to and shall upon request from the Purchaser postpone the Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the Meeting, but in any event to a date that is not less than five (5) Business Days prior to the Outside Date.
(6) Nothing contained in this Agreement Article 5 shall prohibit the Yerbaé Board from (or the Special Committee) from:
(a) responding through a directors’ circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal Proposal, provided that Yerbaé the Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give reasonable consideration to any comments made provided by Safety Shot the Purchaser and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent counsel; or
(b) calling or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the fiduciary duties CBCA or taking any other action with respect to an Acquisition Proposal to the extent ordered or otherwise mandated by a court of the Yerbaé Board or such disclosure is otherwise required under Applicable competent jurisdiction in accordance with Law; provided, however, in each case that, notwithstanding that the Yerbaé Board shall be permitted to make such disclosure, take the Yerbaé actions contemplated in Subparagraphs (a) and (b) above the Board shall not be permitted to make a Change in Recommendation, other than Recommendation except as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity pursuant to review the form and content terms of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselthis Article 5.
(f7) Any violation From the date of this Agreement until the earlier to occur of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach termination of this Section 4.4 Agreement pursuant to Article 7 and the Effective Time, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement to the extent necessary to permit a confidential proposal being made to the Board (or any committee thereof); provided, that, the Board has determined in good faith (after consultation with outside legal counsel) that failure to take such action would be inconsistent with its fiduciary duties.
(8) The Parties hereby acknowledge and agree that the Exclusivity Agreement, dated as of July 11, 2022, by Y▇▇▇▇▇. Furthermoreand between the Parent and the Company, Yerbaé shall terminate and be responsible for any breach of no further force or effect as of the date of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesAgreement.
Appears in 1 contract
Sources: Arrangement Agreement (Semtech Corp)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Shareholders, the Yerbaé Board may, subject to compliance with Article 6 and Section 8.25.6, make a change in Board Recommendation or authorize the Company to accept, approve, or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Company;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to make a change in Board Recommendation and/or to recommend that the Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B6.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 5.6.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) above to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly immediately so advise Safety Shot the Purchaser and Yerbaé the Company, and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shot, the Purchaser and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal that is publicly announced or publicly disclosed which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than ten (10) Business Days before the Company Meeting, the Company shall either proceed with or postpone the Company Meeting, as directed by the Purchaser, to a date that is not more than ten (10) Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five (5) Business Days prior to the Outside Date.
(6) Nothing contained in this Agreement shall prohibit prevent the Yerbaé Board from responding through complying with Section 2.17 of National Instrument 62-104 - Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ circular or otherwise as required by Applicable Securities Laws to in respect of an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé shall provide Safety Shot the Purchaser and its legal counsel shall be provided with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give make all reasonable consideration to any comments made amendments as requested by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot Purchaser and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé Goldrock receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Goldrock Securityholders, the Yerbaé Goldrock Board may, subject to compliance with Section 8.28.3, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(ii) Goldrock has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé7;
(iii) Yerbaé Goldrock has delivered to Safety Shot Fortuna a written notice of the determination of the Yerbaé Goldrock Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Goldrock Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Goldrock Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(iv) Goldrock has provided Fortuna with a copy of the proposed definitive agreement for the Superior Proposal, together with a summary of the factors used by the Goldrock Board to conclude it is a Superior Proposal, and in the case of a proposal that includes non-cash consideration, the value or range of values attributed by the Goldrock Board, in good faith, to such non-cash consideration, after consultation with its financial advisers;
(v) at least ten six (106) full Business Days calendar days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot Fortuna received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from Goldrock;
(vvi) during any Matching Period, Safety Shot Fortuna has had the opportunity (but not the obligation), in accordance with Section 4.4(b7.3(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vivii) after if Fortuna has offered to amend this Agreement and the Matching PeriodArrangement under Section 7.3(b), the Yerbaé Goldrock Board has determined in good faith, after consultation with its Goldrock's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Fortuna under Section 4.4(b7.3(b));
(viii) the Goldrock Board has determined in good faith, after consultation with Goldrock's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viiix) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Goldrock terminates this Agreement pursuant to Section 8.1(a)(vii)(BSubsection 8.2(a)(iv)(B) and pays Safety Shot the Termination FeeFee pursuant to Section 8.3.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Goldrock may approve in writing for such purpose: (a) the Yerbaé Goldrock Board shall review any offer made by Safety Shot Fortuna under this Section 4.4(b7.3(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé Goldrock shall negotiate in good faith with Safety Shot Fortuna to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Fortuna to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Goldrock Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Goldrock shall promptly so advise Safety Shot Fortuna and Yerbaé Goldrock and Safety Shot Fortuna shall amend this Agreement to reflect such offer made by Safety ShotFortuna, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.47.3, and Safety Shot Fortuna shall be afforded a new six (6) calendar day Matching Period from the later of the date on which Safety Shot Fortuna received the Superior Proposal Notice with respect to and a copy of the proposed definitive agreement for the new Superior Proposal from YerbaéGoldrock.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be If Goldrock provides a Superior Proposal Notice to Fortuna after a date that is publicly announced or publicly disclosed or less than 10 Business Days before the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties date of the Yerbaé Board Goldrock Meeting, Goldrock shall either proceed with or such disclosure shall postpone the Goldrock Meeting, as directed by Fortuna acting reasonably, to a date that is otherwise required under Applicable Law; provided, however, that, notwithstanding not more than 10 Business Days after the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation scheduled date of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesGoldrock Meeting.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Securityholders, the Yerbaé Board may, subject to compliance with Section 8.2, make a Change in Recommendation and enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
: 48 (i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation use of information, permitted purpose or similar agreement restriction or covenant in an existing confidentiality or similar agreement; (b) the Company has been, and continues to be, in compliance with Yerbaé;
its obligations under this Article 5 (iiiother than de minimis breaches); (c) Yerbaé the Company has delivered to Safety Shot a the Purchaser written notice of its receipt of such Acquisition Proposal and of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to make a Change in Recommendation and enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
; (ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for such Acquisition Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith; (e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice;
Notice and all of the materials set forth in Section 5.4(1)(d); (vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity right (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé Proposal; (g) if the Purchaser has negotiated, and caused its Representatives offered to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of amend this Agreement that Safety Shot proposes pursuant to and the Arrangement under Section 4.4(b5.4(2);
(vi) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its the Company’s outside legal counsel counsels and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b)5.4(2); and
(viih) the Board has determined in good faith, after consultation with the Company’s outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Acquisition Proposal in order to properly discharge its fiduciary duties; and (i) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying with respect to such Acquisition Proposal, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Purchaser shall have the right (but not the obligation) to offer to amend this Agreement and the Arrangement; (b) the Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) and Section 5.4(2)(a) to amend the terms of this Agreement and the Arrangement in good faith in order to determine determine, after consultation with the Company’s legal counsels and financial advisors, whether such proposal offer made by the Purchaser would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (bc) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior ProposalProposal following the offer made by the Purchaser, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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) consideration to be received by Yerbaé Shareholders the Securityholders or any other material terms or conditions thereof amendment to such Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the new Superior Proposal Notice with respect to and all of the material set forth in Section 5.4(1)(d) for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel counsels and financial advisors with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsellegal counsels and financial advisors.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser after a date that is less than seven (7) Business Days before the Yerbaé BoardCompany Meeting, acting in good faith the Company shall be entitled to, and upon the advice of its outside legal Purchaser and financial advisorsthe Guarantor shall be entitled to require the Company to, shall have determined adjourn or postpone the Company Meeting to a date that is not more than 15 Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding Company Meeting but in any event the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meeting shall not be permitted postponed to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity date which would prevent the Effective Date from occurring on or prior to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisorsfaith, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution in accordance with the Interim Order, the Yerbaé Board may, subject to compliance with Article 7 and Section 8.2, authorize the Company to enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal or may make a Change in Recommendation, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaérestriction;
(ii) such Acquisition Proposal did not result from a breach by the Company of its obligations under this Article 5;
(iii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Acquisition Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated make a Change in Recommendation (the a “Superior Proposal Notice”);
(iv) the Company has provided the Purchaser with a copy of the proposed definitive agreement for the Superior Proposal (if any) and all supporting materials supplied to the Company in connection therewith, including the value in financial terms that the Board has, with its financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(v) at least ten (10) full five Business Days 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 all of the materials set forth in Section 5.4(1)(iv) (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(iii)(b) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Company may approve in writing for such purpose: (i) the Purchaser shall have the opportunity, opportunity (but not the obligation), to propose offer to amend this Agreement and the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (aii) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement Arrangement, in consultation with outside legal and financial advisors and in good faith in order faith, to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and (biii) Yerbaé if the Board determines that such Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Company Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the Purchaser shall be afforded a new Matching Period from in connection therewith, provided that, notwithstanding Section 5.4(1)(v) above, the later duration of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaésuch Matching Period shall be three Business Days rather than five Business Days.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has that is determined not to be a Superior Proposal is publicly announced or publicly disclosed or if the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a the reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its legal counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser on a date that is less than ten Business Days before the Yerbaé BoardCompany Meeting, acting in good faith the Company shall be entitled to, and upon the advice of its outside legal and financial advisorsPurchaser shall be entitled to require the Company to, shall have determined adjourn or postpone the Company Meeting to a date that is not more than ten Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties date of the Yerbaé Board or such disclosure is otherwise required under Applicable LawSuperior Proposal Notice; provided, however, that, notwithstanding that the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meeting shall not be permitted adjourned or postponed to make a Change in Recommendation, other date later than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity the seventh Business Day prior to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f6) Any violation of the restrictions set forth in this Section 4.4 Article 5 by the Yerbaé Company, its Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ their respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 Article 5 by the Yerbaé Subsidiaries and its and their respective RepresentativesCompany.
Appears in 1 contract
Sources: Arrangement Agreement (Student Transportation Inc.)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, approval of the Yerbaé Arrangement Resolution by the Company Shareholders the Board may, subject to compliance with Section 8.2Article 7, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Company or any of its Subsidiaries;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee7.2(1)(c)(ii).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or shall postpone the Company Meeting to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting, as directed by the Purchaser acting reasonably.
(6) Nothing in this Agreement shall prohibit prevent the Yerbaé Board from responding through complying with Section 2.17 of MI 62-104 and similar provisions under Securities Laws relating to the provision of a directors’ circular or otherwise as required by Applicable Securities Laws to in respect of an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review for the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselCompany.
(f7) Any The Company shall advise its Subsidiaries and their respective Representatives of the prohibitions set out in this Article 5 and any violation of the restrictions set forth in this Section 4.4 Article 5 by the Yerbaé Company, its Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ their respective Representatives shall be is deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 Article 5 by the Yerbaé Subsidiaries and its and their respective RepresentativesCompany.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Company Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Company Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Company Board maymay make a Company Change in Recommendation and approve, subject to compliance with Section 8.2, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Company Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Company Superior Proposal was not restricted from making such Acquisition Company Superior Proposal pursuant to an existing confidentiality, standstillstandstill use, non-solicitation business purpose or similar agreement with Yerbaérestriction;
(iiib) Yerbaé the Company Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Company of this Article 5;
(c) the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Company Acquisition Proposal constitutes a Company Superior Proposal and of the intention of the Yerbaé Company Board to make a Company Change in Recommendation and/or enter into such definitive agreement promptly following the making of such determination, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Company Board regarding the value and financial terms and conditions of 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 and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Company Superior Proposal Notice”);
(ivd) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Company Superior Proposal and all supporting materials (including any financing documents, subject to customary confidentiality provisions with respect to fee letters or similar information) provided to the Company in connection therewith);
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Company Superior Proposal NoticeNotice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the Company Superior Proposal from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to the Company to amend this Agreement and the Arrangement in order for such Company Acquisition Proposal to cease to be a Company Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);Proposal; and
(vig) after the Matching Period, the Yerbaé Company Board has determined determined, in good faith, after consultation with its the Company’s financial advisors and outside legal counsel and financial advisorscounsel, that such Company Acquisition Proposal continues to constitute remains a Company Superior Proposal (if applicable, as compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b))the Purchaser and that it is necessary for the Company Board to cause the Company to enter into a definitive agreement with respect to such Company Superior Proposal in order to satisfy their fiduciary duties to the Company;
(h) 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 and Lock-Up 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 the termination of this Agreement or pursuant to the Voting Support and Lock-Up Agreements; and
(viii) prior to or the Company concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee7.2(1)(c)(iii).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Company Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. The Company agrees that, subject to the Company’s disclosure obligations under applicable Securities Laws, the fact of the making of, and each of the terms of, any such proposed amendments shall be kept strictly confidential and shall not be disclosed to any Person (including without limitation, the Person having made the Company Superior Proposal), other than the Company’s Representatives, without the Purchaser’s prior written consent. If the Yerbaé Company Board determines that such Company Acquisition Proposal would cease to be a Company Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, approval of the Yerbaé Arrangement Resolution by the Common Shareholders the Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Company or any of its Subsidiaries;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to recommend that the Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve (in its sole discretion) in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or postpone the Company Meeting to a date that is not more than 15 Business Days after the scheduled date of the Company Meeting, as directed by the Purchaser.
(6) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing contained in this Agreement shall prevent the Yerbaé Board from making any disclosure complying with Section 2.17 of Multilateral Instrument 62-104 – Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the Yerbaé Shareholders if the Yerbaé Board, acting provision of a directors’ circular in good faith and upon the advice respect of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselan Acquisition Proposal.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé a Party receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal (the “Receiving Party”) prior to obtaining to, in the Yerbaé Shareholder Approvalcase of EHT being the Receiving Party, the Yerbaé Board approval of the EHT Arrangement Resolution by the EHT Shareholders, and in the case of SKYE being the Receiving Party, the approval of the SKYE Resolution by the SKYE Shareholders, the Receiving Party may, subject to compliance with Section 8.27.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person person or persons making the Acquisition such Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purposes or similar agreement restriction with Yerbaéthe Receiving Party or its Subsidiaries;
(iiib) Yerbaé the Receiving Party has delivered to Safety Shot the other Party a written notice of the determination of the Yerbaé Board Receiving Party’s special committee that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board Receiving Party’s special committee of directors to resolve that the Receiving Party enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to a Receiving Party in connection therewith;
(d) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the other Party received the Superior Proposal Notice;Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(c); 328972.00001/116443569.20
(ve) during any Matching Period, Safety Shot such other Party has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after the Matching Period, the Yerbaé Board Receiving Party’s special committee 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the other Party under Section 4.4(b5.4(2))) and that the failure by the special committee to take such action would be inconsistent with its fiduciary duties; and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Receiving Party terminates this Agreement pursuant to Section 8.1(a)(vii)(B) 7.2, and pays Safety Shot the SKYE Termination FeeAmount or the EHT Termination Amount, as applicable, pursuant to Section 7.3.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not Receiving Party may approve in writing for such purpose the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board Receiving Party’s special committee shall review any offer made by Safety Shot the other Party under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board Receiving Party’s special committee determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Receiving Party shall promptly so advise Safety Shot the other Party and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety Shotthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the other Party shall be afforded a new Matching Period (provided that any such subsequent Matching Period will only be three Business Days) from the later of the date on which Safety Shot such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(c) with respect to the new Superior Proposal from Yerbaéthe Receiving Party.
(d4) At the written request The Receiving Party’s board of Safety Shot, the Yerbaé Board directors shall promptly reaffirm the Yerbaé EHT Board Recommendation or the SKYE Board Recommendation, as the case may be, by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Receiving Party shall provide Safety Shot the other Party and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the other Party and its counsel.
(e5) Nothing If the Receiving Party provides a Superior Proposal Notice to the other Party on a date that is less than ten Business Days before the EHT Meeting or the SKYE Meeting, as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or adjourn or postpone such EHT Meeting or SKYE Meeting, as the case may be, in accordance with the terms of this Agreement shall prohibit to a date specified by the Yerbaé Board from responding through a directors’ circular other Party that is not more than ten Business Days after the scheduled date of the EHT Meeting or otherwise the SKYE Meeting, as required by Applicable Securities Laws to an Acquisition Proposal the case may be, provided that Yerbaé in no event shall provide Safety Shot and its counsel with such adjourned or postponed meeting be held on a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure date that is less than five Business Days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇Outside Date. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.328972.00001/116443569.20
Appears in 1 contract
Right to Match. (a) If Yerbaé receives an Acquisition Proposal Each Party covenants and agrees that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or it will not make a Change in Recommendation with or accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect to such of a Superior Proposal, if Proposal (other than a confidentiality and only ifstandstill agreement permitted by Section 7.2(b)) unless:
(i) Yerbaé the Party receiving such proposal (the “Receiving Party”) has been, and continues to be, in compliance complied with its obligations under this Article 4 in Section 7.2 and has provided the other Party (the “Responding Party”) with a copy of all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of documentation relating to the Yerbaé Subsidiaries or any of their respective Representatives;Superior Proposal; and
(ii) a period (the Person making “Response Period”) of five (5) business days has elapsed from the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;date that is the later of:
(iiiA) Yerbaé has delivered to Safety Shot a the date on which the Responding Party receives written notice from the board of directors of the determination of the Yerbaé Board Receiving Party that such Acquisition Proposal constitutes board of directors has determined, subject only to compliance with this Section 7.3, to make a Superior Proposal and of the intention of the Yerbaé Board to Change in Recommendation or accept, approve, endorse, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);Proposal; and
(ivB) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Responding Party receives all documentation relating to the Superior Proposal Notice;Proposal.
(vb) during any Matching During the Response Period, Safety Shot has had the opportunity (Responding Party will have the right, but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Plan of Arrangement. The board of directors of the Receiving Party shall review any such offer by the Responding Party to amend this Agreement and the Plan of Arrangement in order for such to determine whether the Acquisition Proposal to cease which the Responding Party is responding would continue to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of when assessed against the Arrangement as it is proposed in writing by the Responding Party to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying amended. If the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot board of directors of the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in Receiving Party determines that the Acquisition Proposal previously constituting a Superior Proposal ceasing to be no longer constitutes a Superior Proposal; and (b) Yerbaé shall negotiate in good faith , such board of directors will cause the Receiving Party to enter into an amendment to this Agreement with Safety Shot to make such the Responding Party incorporating the amendments to the terms of this Agreement or the and Plan of Arrangement as would enable Safety Shot set out in the written offer to proceed with amend, and will promptly reaffirm its recommendation of the transactions contemplated Arrangement by this Agreement on such amended termsthe prompt issuance of a press release to that effect. If the Yerbaé Board board of directors of the Receiving Party determines that such the Acquisition Proposal would cease continues to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot the Receiving Party may approve and Yerbaé recommend that shareholders of the Receiving Party accept such Superior Proposal and Safety Shot shall amend may terminate this Agreement pursuant to reflect such offer made by Safety ShotSection 8.2(a)(iii)(B) or Section 8.2(a)(iv)(B), and shall take and cause as applicable, in order to be taken all such actions as are necessary accept or enter into an agreement, understanding or arrangement to give effect to proceed with the foregoingSuperior Proposal.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the shareholders of the Receiving Party shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot the Responding Party shall be afforded a new Matching Response Period from and the later rights afforded in Section 7.3(b) in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéeach such Acquisition Proposal.
(d) At Where at any time within ten (10) days before the written request of Safety ShotNewstrike Meeting or the Timmins Meeting, as applicable, the Yerbaé Board shall promptly reaffirm Receiving Party has provided the Yerbaé Board Recommendation by press release after any Responding Party with a notice under Section 7.3(a) hereof, an Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or been publicly disclosed or announced, and the Yerbaé Board determines Response Period has not elapsed, then, subject to applicable Laws, at the Responding Party’s request, the Receiving Party will postpone or adjourn the Newstrike Meeting or the Timmins Meeting, as applicable, to a date acceptable to the Responding Party, acting reasonably, which shall not be later than ten (10) days after the scheduled date of the Newstrike Meeting or the Timmins Meeting, as applicable, and shall, in the event that a proposed amendment to the Parties amend the terms of this Agreement or pursuant to Section 7.3(b), ensure that the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content details of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this amended Agreement shall prevent the Yerbaé Board from making any disclosure are communicated to the Yerbaé Shareholders if shareholders as the Yerbaé Board, acting in good faith and upon Receiving Party prior to the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties resumption of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counseladjourned meeting.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board maymay make a Change in Recommendation and approve, subject to compliance with Section 8.2, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstillstandstill use, non-solicitation business purpose or similar agreement with Yerbaérestriction;
(iiib) Yerbaé the Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Company of this Article 5 or the Exclusivity Agreement;
(c) the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 Safety Shot the Purchaser under Section 4.4(b5.4(2));
(h) the Board has determined, in good faith, after consultation with the Company’s outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(viii) 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 Support and Voting 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 entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates termination of this Agreement or pursuant to Section 8.1(a)(vii)(B) the Support and pays Safety Shot the Termination FeeVoting Agreements.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Common Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing while this Agreement remains in force.
(7) Nothing contained in this Agreement shall prevent the Yerbaé Board from making any disclosure complying with Section 2.17 of National Instrument 62-104 - Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the Yerbaé Shareholders if the Yerbaé Board, acting provision of a directors’ circular in good faith and upon the advice respect of its outside legal and financial advisors, shall have determined an Acquisition Proposal that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement (Aphria Inc.)
Right to Match. (a) If Yerbaé Notwithstanding Section 8.1(a) or any other provision of this Agreement to the contrary, if after the date hereof the Company, or any of its Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that was not solicited after the Yerbaé date hereof in contravention of Section 8.1, the Company and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expect to lead to, a Superior Proposal; and
(ii) if the Board determines, of Directors determines in good faith faith, after consultation with its outside legal counsel and financial and legal advisors, constitutes that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal prior and that the failure to obtaining take the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance relevant action would conflict with Section 8.2, enter into a definitive agreement or make a Change in Recommendation its fiduciary duties:
A. furnish information with respect to the Company to the person making such Superior ProposalAcquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representatives; and
B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Section 8.1(a) or any other provision of this Agreement to the contrary notwithstanding, the Company may, at any time after the date of this Agreement, terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality agreement described in Section 8.2(a), the execution of which shall not be subject to the conditions of this Section 8.2(b)) if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was did not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any result from a breach of Section 8.1 and the Yerbaé Subsidiaries or any Company has complied with the other terms of their respective Representativesthis Section 8.2;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice Board of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé Board Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues constitutes or could reasonably be expected to constitute a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties;
(iii) the Company has (A) given written notice to the Purchaser of the determination of the Board of Directors that such Acquisition Proposal constitutes a Superior Proposal and that the Board of Directors intends to withdraw, modify, qualify or change in a manner adverse to the Purchaser or the Parent its approval or recommendation of the Acquisition (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, compared with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counsel, determined should be ascribed to any non-cash consideration included in such Acquisition Proposal);
(iv) a period of least five full Business Days (such five Business Day Period, the “Right to Match Period”) shall have elapsed from 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 documents referred to in clause (B) of Section 8.2(b)(iii), it being understood that the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at the end of the fifth full Business Day following such later date;
(v) if the Purchaser and the Parent have offered to amend the terms of this Agreement during the Arrangement Right to Match Period pursuant to Section 8.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to be a Superior Proposal when assessed against this Agreement as they are proposed to be amended by Safety Shot under Section 4.4(b))as at the termination of the Right to Match Period; and
(viivi) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee9.1(d)(i).
(bc) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Right to Match Period, Safety Shot shall the Purchaser and the Parent will have the opportunity, but not the obligation, to propose offer to amend the terms of this Agreement. The Company agrees that, including an increase inif requested by the Purchaser, or modification of, it will negotiate with the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement Purchaser and the Arrangement Parent in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot it to proceed with the transactions contemplated by this Agreement hereby on such amended terms. The Board of Directors will review in good faith any such offer made by the Purchaser and the Parent to amend the terms of this Agreement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement as it is proposed to be amended as at the termination of the Right to Match Period. If the Yerbaé Board of Directors determines that such the applicable Acquisition Proposal would cease to be a Superior ProposalProposal when assessed against this Agreement and the Acquisition as they are proposed to be amended as at the termination of the Right to Match Period, Yerbaé shall promptly the Company will forthwith so advise Safety Shot the Purchaser and Yerbaé will promptly thereafter accept the offer by the Purchaser and Safety Shot shall the Parent to amend the terms of this Agreement and the Parties agree to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions and execute such documents as are necessary to give effect to the foregoing.
(cd) If requested by the Purchaser, the Board of Directors shall reaffirm its recommendation in favour of the Acquisition by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e) Each successive amendment material amendment, change or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or and conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 8.2 and Safety Shot shall be afforded result in the commencement of a new Matching Right to Match Period from the later of the date on which Safety Shot received the Superior Proposal Notice specified in Section 8.2(b)(vi) with respect to the such new Superior Proposal from YerbaéAcquisition Proposal.
(df) At The Company shall ensure that each of its Representatives is aware of the written request provisions of Safety Shot, Section 8.1 and this Section 8.2 and the Yerbaé Board Company shall promptly reaffirm the Yerbaé Board Recommendation be responsible for any breach of Section 8.1 or this Section 8.2 by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counselpersons.
(eg) Nothing contained in this Agreement shall prohibit the Yerbaé Board of Directors from making a change in recommendation or from making any disclosure to any Securityholders of the Company prior to the Effective Time, including for greater certainty disclosure of a change in recommendation, if, in the good faith judgment of the Board of Directors, after consultation with outside legal counsel, failure to take such action or make such disclosure would conflict with the Board of Director’s exercise of its fiduciary duties or such action or disclosure is otherwise required under Law (including without limitation by responding through to an Acquisition Proposal under a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel).
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board may, subject to compliance with Section 7.2 and Section 8.2, enter into a definitive written agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill use, business purpose or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects 5 and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of has complied with its obligations under the Yerbaé Subsidiaries or any of their respective RepresentativesExclusivity Agreement;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board has determined in good faith, faith (i) 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 Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) after consultation with its outside legal counsel, that it is necessary for the Board to enter into such definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(viih) prior to or the Company concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and prior to or concurrently with such termination pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser, and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting, as directed by the Purchaser, to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Article 5 shall prohibit prevent the Yerbaé Board from responding through complying with Section 2.17 of National Instrument 62-104 - Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ circular or otherwise as required by Applicable Securities Laws to in respect of an Acquisition Proposal that is not a Superior Proposal, provided that Yerbaé shall provide Safety Shot and its counsel however, for greater certainty, the Board is not permitted to shorten the deposit period unilaterally with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration respect to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure Acquisition Proposal which is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counseltakeover bid.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (1) Subject to Section 7.2(2), Viceroy covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Acquisition Proposal (other than a confidentiality agreement permitted by Section 7.1(4)) unless:
(a) If Yerbaé receives an the Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal;
(b) Viceroy has complied with its obligations under Section 7.1 and the other provisions of this Article VII;
(c) Viceroy has provided Yamana with notice in writing that there is a Superior Proposal together with all documentation related to and detailing the Superior Proposal (including a copy of the confidentiality agreement between Viceroy and the person making the Superior Proposal if not previously delivered) at least four business days prior to obtaining the Yerbaé Shareholder Approvaldate on which the Board of Directors proposes to accept, the Yerbaé Board mayapprove, subject recommend or to compliance with Section 8.2, enter into any agreement relating to such Superior Proposal;
(d) a definitive period (the “Response Period”) of four business days shall have elapsed from the later of the date Yamana received notice of Viceroy’s proposed determination to accept, approve, recommend or to enter into any agreement or make a Change in Recommendation with respect relating to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any the date Yamana received a copy of the Yerbaé Subsidiaries or any written proposal in respect of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant and, if Yamana has offered to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice amend the terms of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), Offer in accordance with Section 4.4(b)this Section, to offer to amend this Agreement during such four business day period, the Board of Directors (after receiving advice from its financial advisors and outside legal counsel) shall have determined in good faith and by formal resolution that the Arrangement in order for such Acquisition Proposal to cease continues to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot compared to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared proposed amendment to the terms of the Arrangement as proposed to be amended Offer by Safety Shot under Section 4.4(b)); andYamana;
(viie) prior to or Viceroy concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.2(1)(f), and
(f) and pays Safety Shot Viceroy has previously paid, or concurrently will pay, to Yamana the Termination FeePayment.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Response Period, Safety Shot shall Yamana will have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreementthe Offer. The Board of Directors will review, in good faith in exercise of its fiduciary duties, any such proposal by Yamana to amend the terms of the Offer, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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) consideration to be received by Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new the holders of Common Shares, to determine whether the Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on to which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to Yamana is responding would be a Superior Proposal when assessed against the Offer as it is publicly announced or publicly disclosed or proposed by Yamana to be amended. If the Yerbaé Board determines that a proposed amendment to of Directors does not so determine, the terms Board of this Agreement or Directors of Viceroy will promptly reaffirm its recommendation of the Plan of Arrangement Offer as contemplated under amended in the same manner as described in Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal2.4. Yerbaé shall provide Safety Shot Yamana and its outside legal counsel with shall be given a reasonable opportunity to review and comment on the form and content of any such press release prior to its issue. If the Board of Directors does so determine, Viceroy may on termination of this Agreement in accordance with Section 8.2(1)(f) and shall make all reasonable amendments payment of the fee to such press release as requested by Safety Shot and its counselYamana pursuant to Section 7.3, approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal.
(e3) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws Each successive amendment to an any Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review results in an increase in, or modification of, the form and content consideration (or value of such disclosure and shall give reasonable consideration consideration) to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 received by the Yerbaé Subsidiaries or Yerbaé’s or holders of Common Shares shall constitute a new Acquisition Proposal for the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach purposes of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé 7.2 and Yamana shall be responsible for any breach afforded a new Response Period in respect of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representativeseach such Acquisition Proposal.
Appears in 1 contract
Sources: Support Agreement (Yamana Gold Inc)
Right to Match. (a) If Yerbaé receives an Acquisition Proposal The Company covenants that the Yerbaé Board determinesit will not accept, approve, recommend or enter into any agreement, in good faith after consultation with its outside financial respect of a Takeover Proposal (and legal advisorsshall not make nor allow any public communication about such Takeover Proposal), constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only ifunless:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition the Takeover Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesis a Superior Proposal;
(ii) the Person making Company has provided to the Acquisition Purchaser a copy of the Takeover Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentialityor the full details thereof (and any subsequent amendment thereof) and the identity of the persons involved, standstill, non-solicitation or similar agreement with Yerbaé;which information Purchaser shall keep strictly confidential; and
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated period (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Response Period”) of five Business Days shall have elapsed from the date that is the latest of (i) the date on which Safety Shot the Purchaser received written notice from the Company that the Company Board determined, subject only to compliance with this Section 4.6, to accept, approve, recommend or enter into a binding agreement to proceed with the Superior Proposal Notice;
Proposal, and (vii) during any Matching Periodthe date the Purchaser received a copy of the Superior Proposal, Safety Shot has had provided, for the opportunity (but not the obligation)avoidance of doubt, that, notwithstanding Section 4.5 above, in accordance the event of receipt of any such Takeover Proposal, the Company and its Representatives shall be allowed to provide information to, and participate in discussions and negotiations with Section 4.4(b)the person having made such Takeover Proposal, to offer to amend this Agreement provided such person has signed a confidentiality agreement with the Company on terms not less restrictive (including standstill provisions) on the other party than the confidentiality agreement signed on October 24, 2008 between the Company and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiatedPurchaser, and caused its Representatives to negotiate, in good faith with Safety Shot provided that all information which is provided to the extent Safety Shot wishes to negotiate any revisions third party is simultaneously provided to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after Purchaser. During the Matching Response Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot Purchaser shall have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreement and/or of the Offers and the Company shall, and shall cause its advisors to, negotiate in good faith with the Purchaser to make such adjustments to the terms and conditions of this Agreement and/or the Offers as would enable the Company to proceed with this Agreement and the Offers as amended, rather than the Superior Proposal. If during the Response Period, the Purchaser submits a proposal to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During Offer Prices, the Matching Period: (a) the Yerbaé Company Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Takeover Proposal previously constituting to which the Purchaser is responding would be a Superior Proposal ceasing when assessed against this Agreement and/or the Offers as they are proposed by the Purchaser to be a amended. If the Company Board does not so determine, the Company Board, subject to Purchaser and Company entering into an amendment to this Agreement, will promptly reaffirm that the Offers, as revised, are in the best interests of the Company, its employees and its shareholders and other holders of Securities by confirming its Initial Company Board Recommendation or its Company Board Recommendation. If the Company Board does so determine, the Company may approve and recommend that holders of Securities accept such Superior Proposal; Takeover Proposal and (b) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of may terminate this Agreement or the Plan of Arrangement as would enable Safety Shot pursuant to Section 8.1 to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé provided that such termination shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect only be effective if such offer made by Safety ShotSuperior Proposal, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase inextent it is a tender offer, or modification of, the Consideration (or value of such Consideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent filed with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(aAMF and cleared (déclaré conforme) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesAMF.
Appears in 1 contract
Sources: Memorandum of Understanding (Sierra Wireless France SAS)
Right to Match. (a1) If Yerbaé the Vendor receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board may, subject may make a Change in Recommendation and authorize the Vendor to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstillstandstill use, non-solicitation business purpose or similar agreement with Yerbaérestriction;
(iiib) Yerbaé the Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Vendor of this Article 3;
(c) the Vendor has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Vendor or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Vendor;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b3.4(2), to offer to amend this the Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after if the Matching PeriodPurchaser has offered to amend the Agreement under Section 3.4(2), the Yerbaé 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 Agreement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b3.4(2)); and
(viih) the Board has determined, in good faith, after consultation with the Vendor’s outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Vendor; and
(i) such Superior Proposal does not require the Vendor or any other Person to seek to interfere with the attempted successful completion of the transactions contemplated by the Agreement or any alternative transaction pursued by the Purchaser pursuant to the terms of the Support and Voting Agreements (including requiring the Vendor to delay, adjourn, postpone or cancel the Vendor 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 Vendor or the Target Corporations to any Person in the event that the Vendor completes the transactions contemplated by the Agreement or any other similar transaction with the Purchaser that was agreed to prior to the termination of the Agreement or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) the Support and pays Safety Shot the Termination FeeVoting Agreements.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodVendor may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b3.4(1)(f) to amend the terms of this the Agreement and the Arrangement in good faith faith, after consultation with the Vendor’s outside legal counsel and financial advisers, 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) Yerbaé the Vendor shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this the Agreement or the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this the Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Vendor shall promptly so advise Safety Shot the Purchaser and Yerbaé the Vendor and Safety Shot the Purchaser shall amend this the Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Vendor or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.43.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Vendor.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this the Agreement or the Plan of Arrangement as contemplated under Section 4.4(b3.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Vendor shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its legal counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Vendor provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser after a date that is less than 10 Business Days before the Yerbaé BoardVendor Meeting, the Vendor shall either proceed with or shall postpone or adjourn the Vendor Meeting, as directed by the Purchaser acting in good faith and upon reasonably, to a date that is not more than 10 Business Days after the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure Vendor Meeting, but in any event to a date that is otherwise required under Applicable Law; providednot less than five Business Days prior to the Outside Date, however, that, notwithstanding to the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as extent permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselLaw.
(f6) Any violation of the restrictions set forth Nothing contained in this Section 4.4 by 3.4 shall limit in any way the Yerbaé Subsidiaries or Yerbaé’s or obligation of the Yerbaé Subsidiaries’ respective Representatives shall be deemed Vendor to be a breach of this convene and hold the Vendor Meeting in accordance with Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by 2.1 hereof while the Yerbaé Subsidiaries and its and their respective RepresentativesAgreement remains in force.
Appears in 1 contract
Right to Match. (a) If Yerbaé receives an Acquisition Proposal that Either Party (the Yerbaé Board determines“Terminating Party”) or the directors thereof may, in good faith after consultation with its outside financial and legal advisorsrespect of any Alternative Transaction, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalaccept, the Yerbaé Board mayapprove or recommend, subject to compliance with Section 8.2, and/or enter into a definitive any agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only effect an Alternative Transaction (the Party hereto other than the Terminating Party hereinafter referred to as the “Non-Terminating Party”) if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesAlternative Transaction constitutes a Superior Offer;
(ii) the Person making Non-Terminating Party has been provided with a copy of the Acquisition Proposal was document containing such Superior Offer (with such deletions as are necessary to protect any confidential portions of such document, provided that material terms and conditions of, and the identity of the person making, such Superior Offer may not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaébe deleted);
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot the Non-Terminating Party received notice of the determination of the Terminating Party to accept, approve or recommend or to enter into an agreement in respect of such Superior Proposal Notice;
Offer (vthe “Notice of Superior Offer”) during any Matching Periodand the Non-Terminating Party has not, Safety Shot has had the opportunity (but not the obligation)within such five Business Day period, in accordance with Section 4.4(b), to offer agreed to amend this Agreement and so that the Arrangement in order for consideration hereunder will at least match such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiatedOffer, and caused its Representatives to negotiate, in good faith with Safety Shot to as determined by the extent Safety Shot wishes to negotiate any revisions to directors of the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé Board has determined Terminating Party in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(viiiv) prior if the Non-Terminating Party has elected not to or concurrently with entering into such definitive agreement or withdrawing or modifying match the Yerbaé Board RecommendationSuperior Offer, Yerbaé the Terminating Party terminates this Agreement pursuant to Section 8.1(a)(vii)(B) 8.2 hereof and pays Safety Shot makes the Termination Feepayment contemplated by, and in accordance with, Section 8.4 hereof. In the event that the Terminating Party provides the Non-Terminating Party with a Notice of Superior Offer on a date that is less than five Business Days prior to the Meetings, the Parties shall adjourn the Meetings to a date that is not less than seven Business Days and not more than 30 Business Days after the Notice of Superior Offer.
(b) Y▇▇▇▇▇ acknowledges and During the five Business Day period referred to in Section 7.4(a), the Terminating Party agrees that, during that the Matching Period, Safety Shot Non-Terminating Party shall have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreement, including an increase in, or modification of, . The board of directors of the Consideration. During the Matching Period: (a) the Yerbaé Board shall Terminating Party will review any offer made proposal by Safety Shot under this Section 4.4(b) the Non-Terminating Party to amend the terms of this Agreement and the Arrangement in good faith in order to determine determine, in its discretion in the exercise of its fiduciary duties, whether such the Non-Terminating Party’s amended proposal would, upon acceptance, acceptance by the Terminating Party would result in the Acquisition Proposal previously constituting a such Superior Proposal Offer ceasing to be a Superior Proposal; and (b) Yerbaé shall negotiate Offer. If the board of directors of the Terminating Party so determines, it will enter into an amendment agreement to this Agreement with the Non-Terminating Party reflecting the Non-Terminating Party’s amended proposal. If the board of directors of the Terminating Party continues to believe, in good faith and after consultation with Safety Shot to make financial advisors and outside counsel, that such amendments to Superior Offer remains a Superior Offer and therefore rejects the terms Non-Terminating Party’s amended proposal, the Terminating Party may, on termination of this Agreement in accordance with Section 8.2 and payment of the Break Fee as required pursuant to Section 8.4, accept, approve, recommend or the Plan enter into an agreement, understanding or arrangement in respect of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended termsSuperior Offer. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or material modification to of any Acquisition Proposal that results in an increase in, or modification of, the Consideration (or value of such Consideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof Superior Offer shall constitute a new Acquisition Proposal Superior Offer for the purposes of this Section 4.4, 7.4 and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated requirement under Section 4.4(b7.4(a) would result in to initiate an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counseladditional five Business Day notice period.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement (Gold Standard Ventures Corp.)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Shareholders, the Yerbaé Board may, subject to compliance with Section 8.27.4, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(ivd) the Company has provided the Purchaser a copy of the definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least ten five (105) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set out in Section 5.3(1)(d) from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.3(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) if the Purchaser has offered to amend this Agreement and the Arrangement under Section 5.3(2), after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.3(2));
(h) the Board has determined in good faith, after consultation with the Company's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 7.4.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.3(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.3, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with and the date on which the Purchaser received all of the materials set out in Section 5.3(1)(d) in respect to the of such new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.3(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than ten (10) Business Days before the Company Meeting, the Company shall prohibit either proceed with or shall postpone the Yerbaé Board from responding through Company Meeting, as directed by the Purchaser acting reasonably, to a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal date that is not more than fifteen (15) Business Days after the scheduled date of the Company Meeting, provided that Yerbaé in no event shall provide Safety Shot and its counsel with such adjourned or postponed meeting be held on a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure date that is less than five (5) Business Days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Shareholders, the Yerbaé Board may, or may cause the Company to, subject to compliance with Section 8.28.2(3), enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, use, business purpose or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal (including any financing commitments or other documents containing material terms and conditions of such Superior Proposal);
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal (including any financing commitments or other documents containing materials terms and conditions of such Superior Proposal) from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board has determined in good faith, faith (i) after consultation with its outside legal counsel and financial advisorsadvisor, 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 Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) after consultation with its outside legal counsel, that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2(3).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal (including any financing commitments or other documents containing materials terms and conditions of such new Superior Proposal) from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser on a date that is less than ten (10) Business Days before the Yerbaé BoardCompany Meeting, the Company shall either proceed with or shall postpone the Company Meeting, as directed by the Purchaser acting in good faith and upon reasonably, to a date that is not more than fifteen (15) Business Days after the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding Company Meeting but in any event the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meeting shall not be permitted postponed to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity date which would prevent the Effective Date from occurring on or prior to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f6) Any violation of the restrictions set forth Nothing contained in this Section 4.4 by 5.4 shall limit in any way the Yerbaé Subsidiaries or Yerbaé’s or obligation of the Yerbaé Subsidiaries’ respective Representatives shall be deemed Company to be a breach convene and hold the Company Meeting in accordance with Section 2.3 of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of Agreement while this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesAgreement remains in force.
Appears in 1 contract
Right to Match. 5.1 If the Lead Investor is the ROFO Seller and the Lead Investor seeks to proceed with a Third Party Sale in accordance with paragraph 3.1 of this Schedule 4 (Right of First Offer) then, following receipt by the Lead Investor of a non-binding indication of interest from a third party (the “Prospective Purchaser”) to purchase the ROFO Sale Shares which complies with the provisions of paragraphs 3.2(b), (c) and (d) of this Schedule 4 (Right of First Offer) and which the Lead Investor is considering accepting, the Lead Investor shall first give written notice to the WBD Investor (a “Right to Match Notice”) which shall:
(a) If Yerbaé receives an Acquisition Proposal that specify the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any name of the Yerbaé Subsidiaries or any of their respective RepresentativesProspective Purchaser;
(iib) specify the Person making amount and type of consideration offered by the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal Prospective Purchaser and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the any other material terms and conditions contained in the non-binding indication of such Superior Proposal and provides interest; and
(c) state that the most current version WBD Investor shall have a period of 20 Business Days from receipt of the proposed agreement under Right to Match Notice (the "RM Offer Period") to deliver a written notice to the Lead Investor (the "RM Offer Notice") which such Superior Proposal is proposed shall specify that the RM Offer Notice constitutes an irrevocable offer by the WBD Investor to purchase all (but not less than all) of the ROFO Sale Shares from the Lead Investor for the same amount offered by the Prospective Purchaser and on materially the same terms and conditions (taken as a whole) contained in the non-binding indication of interest (the "RM Offer").
5.2 If the Lead Investor:
(a) has not received an RM Offer from the WBD Investor in respect of all of the ROFO Sale Shares by the expiry of the RM Offer Period; or
(b) the WBD Investor has informed the Lead Investor that it will not deliver an RM Offer Notice by the expiry of the RM Offer Period, then the Right to Match Notice shall lapse and cease to be consummated effective and the Lead Investor shall thereafter be entitled, at its sole discretion, either to retain all of the ROFO Sale Shares or proceed with a Third Party Sale without any further obligation to the WBD Investor pursuant to paragraph 5 of this Schedule 4 (Right of First Offer) provided that the Third Party Sale shall be done in accordance with paragraphs 3.2(b) to (f) of this Schedule 4 (Right of First Offer).
5.3 If, before expiry of the RM Offer Period, the WBD Investor makes an RM Offer, the Lead Investor may:
(a) reject the RM Offer if, in the opinion of the Lead Investor acting reasonably, the RM Offer is not on materially the same terms and conditions (taken as a whole) as the non-binding indication of interest; or
(b) irrevocably accept the RM Offer, in each case by delivering a written notice to the WBD Investor within 20 Business Days of receipt of the RM Offer Notice (the “Superior Proposal Notice”"RM Acceptance Period");.
(iv) at least ten (10) full 5.4 If the Lead Investor does not reject or accept the RM Offer within the RM Acceptance Period, the Lead Investor shall be deemed to have irrevocably rejected the RM Offer.
5.5 If the Lead Investor has accepted the RM Offer in respect of all of the ROFO Sale Shares by the expiry of the RM Acceptance Period, the Lead Investor and the WBD Investor must execute the ROFO Sale Documents by no later than 20 Business Days (from the “Matching expiry of the RM Acceptance Period”) have elapsed from .
5.6 On the date on which Safety Shot received the Superior Proposal Notice;sale of the ROFO Sale Shares completes pursuant to the ROFO Sale Documents:
(va) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot WBD Investor must pay to the extent Safety Shot wishes to negotiate any revisions to Lead Investor the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms purchase price for all of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b))ROFO Sale Shares; and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments Lead Investor must deliver to the terms WBD Investor a duly executed transfer in favour of this Agreement or the Plan WBD Investor in relation to all of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot ROFO Sale Shares and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect must deliver to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later Company share certificates representing all of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior ProposalROFO Sale Shares. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.SCHEDULE 5 TAG-ALONG
Appears in 1 contract
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Participating Shareholders, the Yerbaé Company Board may, subject to compliance with Section 8.2, enter into a definitive agreement or may make a Change in Recommendation with respect to such Superior ProposalRecommendation, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(ii) the Company has been, and continues to be, in compliance with its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaématerial respects;
(iii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Company Board to enter into such definitive agreement make a Change in Recommendation with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Company Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (collectively, the “Superior Proposal Notice”);
(iv) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(v) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the material referred to in Section 5.4(a)(iv);
(vvi) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé Proposal; and
(vii) if the Purchaser has negotiated, and caused its Representatives offered to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of amend this Agreement that Safety Shot proposes pursuant to and the Arrangement under Section 4.4(b5.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(d)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges For greater certainty notwithstanding any Change in Recommendation in accordance with Section 5.4(a), the Company shall cause the Company Meeting to occur and agrees thatthe Arrangement Resolution to be put to the Company Participating Shareholders thereat for consideration in accordance with this Agreement, during and the Company shall not submit to a vote of its shareholders any Acquisition Proposal other than the Arrangement Resolution prior to the termination of this Agreement.
(c) During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (ai) the Yerbaé Company Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(a)(vi) to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with 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 constitute a Superior Proposal; and (bii) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If If, as a consequence of the Yerbaé Board foregoing, the Company Board, after consultation with outside legal counsel and financial advisors, determines that such Acquisition Proposal would cease to be constitute a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser, and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(cd) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or a modification ofto, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Company Participating Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new an additional five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials referred to in Section 5.4(a)(iv) with respect to the each new Superior Proposal from Yerbaéthe Company.
(de) At the written request of Safety Shot, the Yerbaé The Company Board shall promptly reaffirm the Yerbaé Company Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be constitute a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Company Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an Acquisition Proposal no longer being constituting a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than 10 Business Days before the Company Meeting, the Company may, and shall at the request of Purchaser, postpone the Company Meeting to a date that is not more than 15 Business Days after the scheduled date of the restrictions set forth Company Meeting (and, in this Section 4.4 by any event, prior to the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesOutside Date).
Appears in 1 contract
Right to Match. (a) If Yerbaé Target receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Target Resolution by the Target Shareholders, the Yerbaé Target Board may, subject to compliance with Section 8.27.4, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé Target has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Target has delivered to Safety Shot Acquirer a written notice of the determination of the Yerbaé Target Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Target Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Target Board indicating that the Target Board has determined (in consultation with its financial advisors) that the value of the consideration offered to Target Shareholders under the terms and conditions of such Superior Acquisition Proposal and provides is more favourable, from a financial point of view, to the most current version Target Shareholders than the financial value of the proposed agreement consideration offered by Acquirer to Target Shareholders under which such Superior Proposal is proposed to be consummated the Merger (the “Superior Proposal Notice”);
(iii) Target has provided Acquirer a copy of the definitive agreement for the Superior Proposal and other documents supplied to Target in connection therewith and all documentation relating to Target’s valuation of any non-cash consideration included by the Person making the Acquisition Proposal;
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot Acquirer received from Target the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal and all other materials under Section 5.4(a);
(v) during any Matching Period, Safety Shot Acquirer has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement Merger in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vi) after if Acquirer has offered to amend this Agreement and the Matching PeriodMerger under Section 5.4(b), the Yerbaé Target Board has determined in good faith, after consultation with its Target’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement Merger as proposed to be amended by Safety Shot Acquirer under Section 4.4(b5.4(b));
(vii) the Target Board has determined in good faith, after consultation with Target’s outside legal counsel that the failure to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viiviii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Target terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.3(a)(iv)(A) and pays Safety Shot the Termination Feeamount required under Section 7.4.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Target may approve in writing for such purpose: (ai) the Yerbaé Target Board shall review any offer made by Safety Shot Acquirer under this Section 4.4(b5.4(a)(v) to amend the terms of this Agreement and the Arrangement Merger in good 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; Proposal and (bii) Yerbaé Target shall negotiate in good faith with Safety Shot Acquirer to make such amendments to the terms of this Agreement or and the Plan of Arrangement Merger as would enable Safety Shot Acquirer to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Target Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Target shall promptly so advise Safety Shot Acquirer and Yerbaé Target and Safety Shot Acquirer shall amend this Agreement to reflect such offer made by Safety ShotAcquirer, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Target Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot shall be afforded initiate a new ten (10) Business Day Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from YerbaéPeriod.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be If Target provides a Superior Proposal Notice to Acquirer less than ten (10) Business Days before the Target Meeting, Target shall be entitled to adjourn the Target Meeting to a date that is publicly announced not more than ten (10) Business Days after the scheduled date of the Target Meeting and will do so at the request of Acquirer.
(e) Nothing contained in this Article 5 shall prohibit the Target Board from:
(i) responding through a directors’ circular or publicly disclosed or the Yerbaé Board determines that a proposed amendment otherwise as required by Law to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being that it determines is not a Superior Proposal. Yerbaé , provided that Target shall provide Safety Shot Acquirer and its outside legal counsel with a reasonable opportunity to review and comment on drafts of the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure other related documents, and shall give reasonable consideration to any comments made by Safety Shot Acquirer and its counsel. Further, nothing ; or
(ii) convening a meeting of Target Shareholders requisitioned by the Target Shareholders in this Agreement shall prevent the Yerbaé Board from making accordance with Target’s constating documents or taking any disclosure other action with respect to an Acquisition Proposal to the Yerbaé Shareholders if the Yerbaé Board, acting extent ordered or otherwise mandated by a court of competent jurisdiction in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent accordance with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé Mylk receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes or may constitute a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Mylk Shareholders, the Yerbaé Mylk Board may, subject to compliance with Section 8.2Article 7, enter into a definitive agreement or make a Change in Recommendation with respect to such Acquisition Proposal, that is a Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(b) Mylk has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Mylk has delivered to Safety Shot EATS a written notice of the determination of the Yerbaé Mylk Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Mylk Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Mylk Board regarding the value and financial terms and conditions of that the Mylk Board, in consultation with its financial advisors, has determined should be ascribed to any non- cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”)Notice”);
(d) Mylk has provided EATS a copy of the proposed definitive agreement for the Superior Proposal;
(ive) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot EATS received the Superior Proposal Notice;Notice and a copy of the proposed definitive agreement for the Superior Proposal from Mylk;
(vf) during any Matching Period, Safety Shot EATS has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);Proposal;
(vig) after the Matching Periodif applicable, the Yerbaé Mylk Board has determined in good faith, after consultation with its ▇▇▇▇’s outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot EATS under Section 4.4(b5.4(2));
(h) the Mylk Board has determined in good faith, after consultation with ▇▇▇▇’s outside legal counsel that it is necessary for the Mylk Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties;
(i) such Superior Proposal does not provide for the payment of any break, termination or other fees or expenses to any person in the event that Mylk completes the transactions with EATS contemplated by this Agreement or any other similar transaction with EATS agreed to prior to the termination of this Agreement; and
(viij) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Mylk terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee7.2(1)(c)(ii).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Mylk may approve in writing for such purpose: (a) the Yerbaé Mylk Board shall review any offer made by Safety Shot EATS under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé Mylk shall negotiate in good faith with Safety Shot EATS to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot EATS to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Mylk Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Mylk shall promptly so advise Safety Shot EATS, and Yerbaé Mylk and Safety Shot EATS shall amend this Agreement to reflect such offer made by Safety ShotEATS, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.foregoing.
(c3) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.3, and Safety Shot EATS shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot EATS received the Superior Proposal Notice with respect to and a copy of the definitive agreement for the new Superior Proposal from YerbaéMylk.
(d4) At the written request of Safety Shot, the Yerbaé The Mylk Board shall promptly reaffirm the Yerbaé Mylk Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Mylk Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé Mylk shall provide Safety Shot EATS and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot EATS and its counsel.
(e5) If Mylk provides a Superior Proposal Notice to EATS after a date that is less than ten (10) Business Days before the Mylk Meeting, Mylk shall either proceed with or shall postpone the Mylk Meeting, as directed by EATS to a date that is not more than ten (10) Business Days after the scheduled date of the Mylk Meeting.
(6) Nothing contained in this Section 5.3 shall limit in any way the obligation of Mylk to convene and hold the Mylk Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Article 5 shall prohibit the Yerbaé Mylk Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé Mylk shall provide Safety Shot EATS and its outside legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give make all reasonable consideration to any comments made amendments as requested by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot EATS and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. 7.3.1 Aurizon covenants that it will not accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless:
(a) If Yerbaé receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé Aurizon has been, and continues to be, in compliance complied with its obligations under this Article 4 in all respects Section 7.2 including providing to Hecla a copy of any agreement to implement the Superior Proposal and any supporting documents, including the terms of any proposal to provide financing for such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesSuperior Proposal;
(iib) the Person person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purpose or similar agreement with Yerbaérestriction in favour of Aurizon;
(iiic) Yerbaé Aurizon has delivered to Safety Shot a written notice to Hecla of the its determination of the Yerbaé Board that such Acquisition Proposal constitutes is a Superior Proposal and of the intention of the Yerbaé Board that it intends to accept, endorse, approve, recommend or enter into such definitive an agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which together with a written notice specifies from the material Aurizon Board setting out the value and financial terms and conditions of that the Aurizon Board has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which basis for such Superior Proposal is proposed to be consummated determination in reasonable detail;
(d) a period (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Response Period”) have of five business days has elapsed from the date that is the later of (i) the date on which Safety Shot received Hecla receives written notice from the Aurizon Board that the Aurizon Board has determined, subject only to compliance with this Section 7.3 , to accept, approve, endorse, recommend or enter into a binding agreement to proceed with such Superior Proposal; and (ii) the date Hecla receives a copy of the Superior Proposal Noticeand all related documentation described in Section 7.2.4;
(ve) during any Matching Response Period, Safety Shot Hecla has had the opportunity (but not the obligation), in accordance with Section 4.4(b), ) to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after if Hecla has offered to amend this Agreement and the Matching PeriodArrangement under Section 7.3.1(e) , the Yerbaé Aurizon 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Hecla under Section 4.4(b7.3.1(e) )); and (ii) has determined in good faith, after consultation with its outside legal counsel, that it is necessary for the Aurizon Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viig) prior to or concurrently with entering into such any definitive agreement or withdrawing or modifying the Yerbaé Board Recommendationwith respect to a Superior Proposal, Yerbaé Aurizon terminates this Agreement and pays the Termination Fee pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee7.4 .
(b) Y▇▇▇▇▇ acknowledges and agrees that, during 7.3.2 During the Matching Response Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Aurizon may approve in writing for such purpose: (a) the Yerbaé Aurizon Board shall review any offer made by Safety Shot Hecla under this Section 4.4(b) 7.3.1 to amend the terms of this Agreement and the Arrangement in good faith after consultation with outside legal 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) Yerbaé Aurizon shall negotiate in good faith with Safety Shot Hecla to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Hecla to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Aurizon Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Aurizon shall promptly so advise Safety Shot Hecla and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety ShotHecla, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 7.3.3 Nothing contained in this Article 7 shall limit in any way Aurizon’s obligation to call and hold the Aurizon Meeting.
7.3.4 Where at any time before the Aurizon Meeting, Aurizon has provided Hecla with a notice under Section 7.2.4 , or an Acquisition Proposal has been publicly disclosed or announced and in either case the Response Period has not elapsed, then, subject to applicable Laws, at Hecla’s request, Aurizon will postpone or adjourn the Aurizon Meeting to a date acceptable to Hecla, acting reasonably.
7.3.5 Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the Aurizon Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot Hecla shall be afforded a new Matching Response Period from and the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth rights afforded in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach 7.3 in respect of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representativeseach such Acquisition Proposal.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Common Shareholders, the Yerbaé Board Company may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or with respect to such Superior Proposal and/or the Board may make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement and/or make a Change in Recommendation with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, believes should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(d) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(c);
(ve) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to recommend that the Company enter into a definitive agreement with respect to such Superior Proposal and/or make a Change in Recommendation would be inconsistent with its fiduciary duties; and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board making such a Change in Recommendation, Yerbaé the Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Company Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(c) with respect to the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than 10 Business Days before the Company Meeting, the Company shall prohibit either proceed with or shall postpone the Yerbaé Board from responding through Company Meeting to a directors’ circular or otherwise date that is not more than 10 Business Days after the scheduled date of the Company Meeting, as required directed by Applicable Securities Laws to an Acquisition Proposal the Purchaser provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity the Company will not be required to review postpone the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent Company Meeting past the Yerbaé Board from making any disclosure day that falls three Business Days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f6) Any The Company shall advise its Representatives of the prohibitions set out in this Article 5 and any violation of the restrictions set forth in this Section 4.4 Article 5 by the Yerbaé Subsidiaries Company or Yerbaé’s or the Yerbaé Subsidiaries’ respective its Representatives shall be is deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 Article 5 by the Yerbaé Subsidiaries and its and their respective RepresentativesCompany.
Appears in 1 contract
Sources: Arrangement Agreement (Transatlantic Petroleum Ltd.)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board may, subject to compliance with Section 7.2 and Section 8.2, enter into a definitive written agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 5 and has complied with its obligations under the Exclusivity Arrangement, in each case in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive written agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(ivd) the Company has provided the Purchaser a copy of the proposed definitive written agreement with respect to the Superior Proposal;
(e) at least ten (10) full five Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive written agreement with respect to the Superior Proposal from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to 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 and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board has determined in good faith, faith (i) 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 this Agreement and the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) after consultation with its outside legal counsel, that the failure for the Board to enter into such definitive written agreement with respect to such Superior Proposal would be inconsistent with the Board's fiduciary duties; and
(viih) prior to or the Company concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) 7.2(1 )(c)(ii), and prior to or concurrently with such termination, pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser, and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the Purchaser shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the date on which the Purchaser received a copy of the proposed definitive written agreement for the new Superior Proposal from YerbaéProposal.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is publicly announced and is determined to not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or and the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting, as directed by the Purchaser, to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Article 5 shall prohibit prevent the Yerbaé Board from responding through complying with Part 2 – Division 3 of National Instrument 62-104 – Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ ' circular or otherwise as required by Applicable Securities Laws to in respect of an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Participating Shareholders, the Yerbaé Company Board may, subject to compliance with Section 8.2, enter into a definitive agreement or may make a Change in Recommendation with respect to such Superior ProposalRecommendation, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(ii) the Company has been, and continues to be, in compliance with its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaématerial respects;
(iii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Company Board to enter into such definitive agreement make a Change in Recommendation with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Company Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (collectively, the “Superior Proposal NoticeNotice ”);
(iv) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(v) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the material referred to in Section 5.4(a)(iv);
(vvi) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé Proposal; and
(vii) if the Purchaser has negotiated, and caused its Representatives offered to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of amend this Agreement that Safety Shot proposes pursuant to and the Arrangement under Section 4.4(b5.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(d)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges For greater certainty notwithstanding any Change in Recommendation in accordance with Section 5.4(a), the Company shall cause the Company Meeting to occur and agrees thatthe Arrangement Resolution to be put to the Company Participating Shareholders thereat for consideration in accordance with this Agreement, during and the Company shall not submit to a vote of its shareholders any Acquisition Proposal other than the Arrangement Reso lution prior to the termination of this Agreement.
(c) During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (ai) the Yerbaé Company Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(a)(vi) to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with 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 constitute a Superior Proposal; and (b) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.and
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé the Corporation receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, approval of the Yerbaé Arrangement Resolution by the Corporation Shareholders the Board may, subject to compliance with Section 8.2or may cause the Corporation to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé such Person was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Corporation or any of its Subsidiaries;
(b) the Corporation has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Corporation or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot each Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes it has received a Superior Proposal and of the intention of the Yerbaé Board to approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Corporation or its Representatives have provided to each Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot each Purchaser shall have received the Superior Proposal NoticeNotice and the date on which each Purchaser shall have received a copy of the definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vif) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that (i) 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 Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) it is necessary for the Board to approve, recommend or enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viig) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Corporation terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2(2).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCorporation may approve in writing for such purpose: (a23) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) either Purchaser or both Purchasers to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with outside legal 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 (b23) Yerbaé the Corporation shall negotiate in good faith with Safety Shot the Purchaser(s) to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser(s) to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the Yerbaé foregoing the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Corporation shall promptly so advise Safety Shot the Purchaser(s) and Yerbaé the Corporation and Safety Shot the Purchaser(s) shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser(s), and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Corporation Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the Purchasers shall be afforded a new five (5) Business Day Matching Period from the date that is the later of the date on which Safety Shot each Purchaser shall have received the Superior Proposal Notice with respect to the new Superior Proposal from YerbaéNotice and the date on which each Purchaser shall have received a copy of the proposed definitive agreement for the new Superior Proposal.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or if the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal, as the case may be. Yerbaé The Corporation shall provide Safety Shot the Purchasers and its their respective outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all give reasonable amendments consideration to such press release as requested by Safety Shot and its counselany comments thereon.
(e5) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel5.4(1).
(f6) Any violation If the Corporation provides a Superior Proposal Notice to the Purchasers after a date that is less than five (5) Business Days before the Corporation Meeting, the Corporation shall be entitled to, and shall upon request from either Purchaser, postpone the Corporation Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the restrictions set forth Corporation Meeting (and, in this Section 4.4 by any event, prior to the Yerbaé Outside Date).
(7) The Corporation will ensure that its Representatives and its Subsidiaries or Yerbaé’s or are aware of the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach provisions of this Section 4.4 by Y▇▇▇▇▇Article 5. Furthermore, Yerbaé shall be The Corporation is responsible for any breach of this Section 4.4 Article 5 by the Yerbaé Subsidiaries and its and their respective RepresentativesRepresentatives or its Subsidiaries.
Appears in 1 contract
Sources: Arrangement Agreement (Phi Inc)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Board may, subject or may cause or authorize the Company to, make a Change in Recommendation and approve, recommend or authorize the Company to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Company or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to make a Change in Recommendation or approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(d) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vie) after the Matching Period, the Yerbaé 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 Safety Shot the Purchaser under Section 4.4(b5.5(2)); and
(viif) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Company Termination FeeAmount or the Go-Shop Amount, as applicable, pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with outside legal 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the Yerbaé foregoing the Board determines that (x) such Acquisition Proposal would cease to be a Superior ProposalProposal or (y) that it would not otherwise be inconsistent with its fiduciary duties under applicable Law to not accept such offer and effect a Change in Recommendation, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any an Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new an Acquisition Proposal for the purposes of this Section 4.45.5, and Safety Shot shall be afforded a new provided that the Matching Period from shall extend only until the later of the date on which Safety Shot end of the initial five Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice with respect to for the new Superior Proposal from YerbaéAcquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e4) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Company Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a5.5(1) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review or the form and content first sentence of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselthis paragraph.
(f5) Any violation 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 be entitled to, and shall upon request from Purchaser, postpone the Company Meeting to a date that is not more than 15 Business Days after the scheduled date of the restrictions set forth Company Meeting (and, in this Section 4.4 by any event, prior to the Yerbaé Subsidiaries or Yerbaé’s or Outside Date).
(6) If the Yerbaé Subsidiaries’ respective Representatives Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five Business Days before the Parent Meeting, the Parent shall be deemed entitled to be postpone the Parent Meeting to a breach date that is not more than 15 Business Days after the scheduled date of this Section 4.4 by Y▇▇▇▇▇. Furthermorethe Parent Meeting (and, Yerbaé shall be responsible for in any breach of this Section 4.4 by event, prior to the Yerbaé Subsidiaries and its and their respective RepresentativesOutside Date).
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Company Board may, subject may authorize the Company to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal or may make a Company Change in Recommendation, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar agreement entered into with the Company or any of its Subsidiaries;
(ii) the Company has been, and continues to be, in compliance in all material respects with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé5;
(iii) Yerbaé the Company has delivered to Safety Shot the Purchaser Parties a written notice of the determination of the Yerbaé Company Board and the Company Special Committee that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board make a Company Change in Recommendation, which together with a written notice specifies from the material Company Board regarding the value and financial terms and conditions of 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 and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the a “Superior Proposal Notice”);
(iv) the Company or its Representatives have provided to the Purchaser Parties a copy of the proposed definitive agreement with respect to the Superior Proposal (including any financing commitments or other documents in possession of the Company and its Representatives containing material terms and conditions of such Superior Proposal);
(v) at least ten (10) five full Business Days (the “Matching Period”) have elapsed from the later of the date on which Safety Shot the Purchaser Parties received the Superior Proposal NoticeNotice and the date on which the Purchaser Parties received a copy of the proposed definitive agreement with respect to the Superior Proposal including any financing commitments or other documents in possession of the Company and its Representatives containing material terms and conditions of such Superior Proposal from the Company;
(vvi) during any Matching Period, Safety Shot has the Purchaser Parties have had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vivii) after the Matching Period, the Yerbaé Company Board has and the Company Special Committee have determined in good faith, after consultation with its their outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement (and, if applicable, as proposed to be amended by Safety Shot the Purchaser Parties under Section 4.4(b5.4(b))) and the failure of the Company Board to take such action with respect to such Superior Proposal would be inconsistent with its fiduciary duties to the Company; and
(viiviii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(a)(iii)(B) and concurrently pays Safety Shot the Purchaser Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Company may approve in its sole discretion and in writing for such purpose:
(i) the Purchaser Parties shall have the opportunity, opportunity (but not the obligation, ) to propose offer to amend this Agreement and the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: Arrangement;
(aii) the Yerbaé Company Board shall and the Company Special Committee shall, in good faith and in consultation with their outside legal counsel and financial advisors, review any offer made by Safety Shot under this Section 4.4(b) the Purchaser Parties to amend the terms of this Agreement and the Arrangement in good faith in order Order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and
(iii) the Company shall, and (b) Yerbaé shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser Parties to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser Parties to proceed with the transactions contemplated by this Agreement on such amended terms. If If, as a consequence of the Yerbaé foregoing, the Company Board determines and the Company Special Committee determine that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser Parties and Yerbaé the Company and Safety Shot the Purchaser Parties shall amend this Agreement to reflect such offer made by Safety Shot, the Purchaser Parties and shall take and or cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot to the extent such new Acquisition Proposal is determined to be a Superior Proposal, the Purchaser Parties shall be afforded a new five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser Parties received the a new Superior Proposal Notice and the date on which the Purchaser Parties received from the Company a copy of the definitive agreement and all of the materials referred to in Section 5.4 with respect to the each such new Superior Proposal from YerbaéProposal.
(d) At the written request of Safety Shot, the Yerbaé The Company Board shall promptly (and in any event within one (1) Business Day) reaffirm the Yerbaé Company Board Recommendation by way of a press release after issued by the Company after:
(i) any public announcement that an Acquisition Proposal which the Yerbaé Board has been determined not to be a Superior Proposal is publicly announced or publicly disclosed or Proposal; or
(ii) the Yerbaé Company Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement If the Company provides a Superior Proposal Notice to the Purchaser Parties after a date that is less than ten Business Days before the Company Meeting, the Company shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure be entitled to, and shall give reasonable consideration upon request from the Purchaser Parties, postpone the Company Meeting to a date that is not more than ten Business Days after the scheduled date of the Company Meeting, but in any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure event to a date that is less than ten Business Days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement (Sunoco LP)
Right to Match. (a1) If Yerbaé the Corporation receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder Approval, the Yerbaé Board may, or may cause the Corporation to, based upon, inter alia, the recommendation of the Special Committee, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal or make a Change in Recommendation with respect to such Superior ProposalRecommendation, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal in that context pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Corporation or any of its Subsidiaries;
(b) the Corporation has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Corporation has delivered to Safety Shot the Purchaser Parties a written notice of the determination of the Yerbaé Board (based upon, inter alia, the recommendation of the Special Committee) that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to make a Change in Recommendation or authorize the Corporation to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Corporation has provided the Purchaser Parties a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Corporation in connection therewith;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser Parties received the Superior Proposal NoticeNotice and the date on which the Purchaser Parties received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot has the Purchaser Parties have had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board has (based upon, inter alia, the recommendation of the Special Committee) has:
(i) determined in good faith, after consultation with its the Corporation’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser Parties under Section 4.4(b5.4(2)); and
(viiii) determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to recommend that the Corporation makes a Change in Recommendation or authorizes the Corporation to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(h) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Corporation terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(3)(b) and pays Safety Shot the Corporation Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCorporation may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser Parties under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Corporation shall negotiate in good faith with Safety Shot the Purchaser Parties to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot the Purchaser Parties to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines (based upon, inter alia, the recommendation of the Special Committee) that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Corporation shall promptly so advise Safety Shot the Purchaser Parties and Yerbaé the Corporation and Safety Shot the Purchaser Parties shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser Parties, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser Parties shall be afforded a new full five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser Parties received the Superior Proposal Notice and the date on which the Purchaser Parties received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Corporation.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall forthwith, and in any event within three (3) Business Days from the Purchaser Parties’ reasonable request to do so, promptly reaffirm the Yerbaé Board Recommendation (based upon, inter alia, the recommendation of the Special Committee) by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Corporation shall provide Safety Shot the Purchaser Parties and its their outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser Parties and its their counsel.
(e5) If the Corporation provides a Superior Proposal Notice to the Purchaser Parties on a date that is less than ten (10) Business Days before the Meeting, the Corporation shall be entitled to and shall upon request from the Purchaser Parties, acting reasonably, postpone the Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the Meeting, but in any event to a date that is not later than five (5) Business Days prior to the Outside Date.
(6) Nothing contained in this Agreement shall prohibit the Yerbaé Board from (or the Special Committee) from:
(a) making any disclosure or fulfilling its legal obligations to Shareholders, if the Board (or the Special Committee), after consultation with legal and financial advisors, has determined in good faith that such disclosure or action is necessary for the Board to act in a manner consistent with its fiduciary duties or such action or disclosure is otherwise required by Law (including by responding to an Acquisition Proposal that it determines is not a Superior Proposal through a directors’ ' circular or otherwise as required by Applicable Securities Laws Law);
(b) calling and/or holding a meeting of Shareholders requisitioned by the QBCA or the Shareholders in accordance with the QBCA and the Corporation’s Constating Documents; or
(c) taking any other action with respect to an Acquisition Proposal to the extent ordered or otherwise mandated by a court of competent jurisdiction in accordance with Law, provided however that Yerbaé the Corporation shall provide Safety Shot the Purchaser Parties and its their outside legal counsel with a reasonable opportunity to review and comment on the form and content of such any disclosure to be made pursuant to this Section 5.4(6), and shall give reasonable consideration to any comments made by Safety Shot the Purchaser Parties and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its their outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Board maymay authorize the Company to, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(b) the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after if the Matching PeriodPurchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2), the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2));
(h) the Board has determined in good faith, after consultation with the Company’s outside legal counsel that it is appropriate for the Board to enter into a definitive agreement with respect to such Superior Proposal; and
(viii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with the Company’s outside legal counsel and financial advisers, 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the new Superior Proposal Notice with respect to and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Company.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé TIN covenants that it will not accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect of any Superior Proposal, other than a confidentiality agreement and a standstill agreement permitted by Section 8.2(c), unless:
(i) TIN has (A) complied with its obligations under Section 8.2, (B) provided ELT with a copy of all the terms and conditions of the Superior Proposal in accordance with this Agreement, and (C) has consulted with its legal counsel in respect of the foregoing; and
(ii) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (A) the date on which ELT receives an Acquisition Proposal written notice from the TIN Board that the Yerbaé TIN Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board mayhas determined, subject only to compliance with this Section 8.28.3, to accept, approve, endorse, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(iB) Yerbaé has been, and continues to be, the date ELT receives a complete copy of the Superior Proposal in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”Section 8.2(d);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Response Period, Safety Shot shall ELT will have the opportunityright, but not the obligation, to propose make an irrevocable offer in writing to amend this Agreement and the terms Plan of this AgreementArrangement, including an increase in, or modification of, the ConsiderationConsideration (“Amended Offer”). During the Matching Period: (a) the Yerbaé The TIN Board shall immediately review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith any Amended Offer made before the expiry of the Response Period in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which ELT is responding would continue to be a Superior Proposal when assessed against the Arrangement as it is proposed in the Amended Offer. If the TIN Board determines that the Acquisition Proposal referred to in Section 8.3(a) no longer constitutes a Superior Proposal; , the TIN Board will immediately cause TIN to accept the Amended Offer, and (b) Yerbaé shall negotiate will reaffirm its recommendation of the Arrangement by the prompt issuance of a press release, in form and content satisfactory to ELT, acting reasonably, to that effect. If the TIN Board determines, acting in good faith with Safety Shot to make such amendments to after obtaining advice from its outside legal counsel and financial advisor, that notwithstanding the terms and conditions of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with Amended Offer, the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease continues to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend TIN may terminate this Agreement to reflect in accordance with the procedures set forth in Section 9.2(a)(iv)(A) provided that immediately after such offer made by Safety Shottermination, ▇▇▇ enters into a definitive and shall take and cause to be taken all such actions as are necessary to give effect binding agreement with respect to the foregoingSuperior Proposal that is on identical terms and conditions as advised by TIN to ELT and TIN concurrently pays the Termination Fee as required by Section 9.3(b).
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé TIN or TIN Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 8.3 and Safety Shot ELT shall be afforded a new Matching Response Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be and a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable further opportunity to review and comment on exercise the form and content rights afforded in Section 8.3(b) in respect of any each such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. FurtherProposal, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, thatthat upon acceptance of an Amended Offer by ELT, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board TIN shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to consider any comments further Acquisition Proposal made by Safety Shot and its counselthe same Person or Persons who made the Superior Proposal that resulted in the Amended Offer.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé receives an Acquisition Proposal DRAXIS covenants that the Yerbaé Board determinesit will not accept, approve, recommend or enter into any agreement, understanding or arrangement in good faith after consultation with its outside financial and legal advisors, constitutes respect of a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with (other than a confidentiality agreement permitted by Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if7.2(b)) unless:
(i) Yerbaé DRAXIS has been, and continues to be, in compliance complied with its obligations under Section 7.2 and the other provisions of this Article 4 in all respects 7 and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any has provided Purchaser with a copy of the Yerbaé Subsidiaries or any of their respective Representatives;Superior Proposal; and
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated period (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Response Period”) of five business days shall have elapsed from the date that is the latest of (A) the date on which Safety Shot Purchaser received written notice from the DRAXIS Board that the DRAXIS Board determined, subject only to compliance with this Section 7.3, to accept, approve, recommend or enter into a binding agreement to proceed with the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiatedProposal, and caused its Representatives to negotiate, in good faith with Safety Shot to (B) the extent Safety Shot wishes to negotiate any revisions to date the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute Purchaser received a Superior Proposal (if applicable, compared to the terms copy of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination FeeSuperior Proposal.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Response Period, Safety Shot shall the Purchaser will have the opportunityright, but not the obligation, to propose offer to amend the terms of this AgreementAgreement and the Plan of Arrangement. Within five business days (the “Review Period”) of any such proposal by the Purchaser to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration. During , the Matching Period: (a) the Yerbaé DRAXIS Board shall review any offer made by Safety Shot under this Section 4.4(b) and determine whether the Acquisition Proposal to amend which the terms of Purchaser is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or against the Plan of Arrangement as would enable Safety Shot they are proposed by the Purchaser to be amended. Such determination to be made by the DRAXIS Board shall be communicated to the Purchaser by the end of the Review Period. If the DRAXIS Board does not so determine, the DRAXIS Board, subject to Purchaser and DRAXIS entering into an amendment to this Agreement in respect of the amended Plan of Arrangement, will promptly reaffirm its recommendation of the Plan of Arrangement in the same manner as described in Section 2.4. If the DRAXIS Board does so determine, DRAXIS may approve and recommend that holders of DRAXIS Shares accept such Superior Proposal and may terminate this Agreement pursuant to Section 8.2(a)(iv)(A) to accept or enter into an agreement, understanding or arrangement to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the holders of the DRAXIS Shares shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot Purchaser shall be afforded a new Matching Response Period from in respect of each such Acquisition Proposal and the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaérights afforded in paragraph 7.3(b).
(d) At In the written request of Safety Shotevent that DRAXIS provides notice in accordance with Section 7.3(a)(ii) on a date which is less than five business days prior to the DRAXIS Meeting, the Yerbaé Board Purchaser shall promptly reaffirm be entitled to require DRAXIS to adjourn or postpone the Yerbaé Board Recommendation by press release DRAXIS Meeting to a date that is not more than seven business days after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content date of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselnotice.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder Approval, the Yerbaé Board may, or may cause the Company to, (based upon, amongst other things, the recommendation of the Special Committee), subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaéagreement, restriction or covenant, and such Acquisition Proposal did not result from a breach from Article 5 in any material respect;
(iiib) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board (based upon, amongst other things, the recommendation of the Special Committee) that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to authorize the Company to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including the Yerbaé value in financial terms that the Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(ivc) the Company has provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal, together with all related documents, including shareholder voting and support agreements, financing commitment papers and any rollover, reinvestment or similar agreements;
(d) at least ten five (105) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the proposed definitive agreement and related documents for the Superior Proposal;
(ve) during any Matching Period, Safety Shot (i) the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiatedProposal, and caused its Representatives to negotiate, (ii) the Company has negotiated in good faith with Safety Shot the Purchaser (to the extent Safety Shot wishes the Purchaser desires to negotiate negotiate) regarding any revisions amendments proposed by the Purchaser to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)and the Arrangement;
(vif) after the Matching Period, the Yerbaé Board has determined in good faithfaith (based upon, amongst other things, the recommendation of the Special Committee), after consultation with its outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2)); and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) [Superior Proposal] and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in its sole discretion in writing for such purpose: (a) the Yerbaé Purchaser shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal and the Board shall (and Special Committee) shall, in consultation with the outside legal counsel and financial advisers, review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé if the Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate in good faith exclusively with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines (based upon, inter alia, the recommendation of the Special Committee) that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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) consideration to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to for the new Superior Proposal from Yerbaéand a copy of the proposed definitive agreement for the new Superior Proposal.
(d4) At The Board and the written Special Committee shall promptly, and in any event within three (3) Business Days from the Purchaser's request of Safety Shotto do so, reaffirm (subject to Section 5.1(1)(d)) the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation and the Special Committee Recommendation, as applicable, by press release after any Acquisition Proposal which the Yerbaé Board has is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of any such disclosure press release and shall give reasonable consideration to any comments made provided by Safety Shot the Purchaser and its outside legal counsel. Further.
(5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than ten (10) Business Days before the Meeting, the Company shall be entitled to and shall upon request from the Purchaser postpone the Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the Meeting, but in any event to a date that is not less than ten (10) Business Days prior to the Outside Date.
(6) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement shall prevent prohibit the Yerbaé Company or the Board from (a) complying with Rules 14d-9 and 14e-2(a) under the Exchange Act or similar Laws under other Securities Law, including a "stop, look and listen" communication (or any substantially similar communication) by the Board or the Special Committee, as applicable, to Shareholders pursuant to Rule 14d-9(f) under the Exchange Act; (b) complying with Item 1012(a) of Regulation M-A under the Exchange Act; (c) complying with the Company's disclosure obligations under Securities Law; or (d) making a Change in Recommendation or from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties any securityholders of the Yerbaé Board or such Company prior to the Effective Time, including for greater certainty disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make of a Change in Recommendation, other than if, in the good faith judgment of the Board, after consultation with outside legal counsel and upon the recommendation of the Special Committee, failing to take such action or make such disclosure would reasonably be expected to be inconsistent with the Board's exercise of its fiduciary duties or such action or disclosure is otherwise required by Law (including by responding to an Acquisition Proposal under a directors' circular or otherwise as permitted required by Law); provided that, for greater certainty, in the event of a Change in Recommendation and a termination by the Purchaser of this Agreement pursuant to Section 7.2(1)(d)(ii), the Company shall be obligated to pay the Termination Fee as required by Section 4.4(a8.2(2). The Board may not make a Change in Recommendation pursuant to the preceding sentence unless the Company gives the Purchaser at least three (3) and Business Days prior written notice of its intention to make such Change in Recommendation, provided that Yerbaé that, for greater certainty, the foregoing limitation shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content not apply in respect of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth actions taken under Section 5.4(1). In addition, nothing contained in this Section 4.4 by Agreement shall prohibit the Yerbaé Subsidiaries or Yerbaé’s Company or the Yerbaé Subsidiaries’ respective Representatives shall be deemed Board from calling or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the CBCA or taking any other action with respect to be an Acquisition Proposal to the extent ordered or otherwise mandated by a breach court of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.competent jurisdiction in accordance with Law;
Appears in 1 contract
Sources: Arrangement Agreement (Nuvei Corp)
Right to Match. (a) If Yerbaé QPM receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the QPM Shareholders, the Yerbaé QPM Board may, subject to compliance with Article 7 and Section 8.28.3, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill or similar agreement or restriction;
(ii) QPM has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé7;
(iii) Yerbaé QPM has delivered to Safety Shot Fury a written notice of the determination of the Yerbaé QPM Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé QPM Board to enter into such definitive agreement with respect to such Superior Proposal, such notice to include a summary of the factors used by the QPM Board to conclude that the Acquisition Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such constitutes a Superior Proposal and provides and, in the most current version case of a proposal that includes non-cash consideration, the proposed agreement under which value or range of values attributed by the QPM Board, in good faith, to such Superior Proposal is proposed to be consummated non-cash consideration, after consultation with its financial advisers (the “Superior Proposal Notice”);
(iv) QPM has provided Fury with a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents provided to QPM in connection therewith;
(v) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot ▇▇▇▇ received the Superior Proposal NoticeNotice and the date Fury received all of the materials set forth in Subsection 7.4(a)(iv);
(vvi) during any Matching Period, Safety Shot ▇▇▇▇ has had the opportunity (but not the obligation), in accordance with Section 4.4(b7.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vivii) after if ▇▇▇▇ has offered to amend this Agreement and the Matching PeriodArrangement under Section 7.4(b), the Yerbaé QPM Board has determined in good faith, after consultation with its outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Fury under Section 4.4(b7.4(b));
(viii) the QPM Board has determined in good faith, after consultation with its outside legal counsel, that the failure by the QPM Board to recommend that QPM enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viiix) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendationagreement, Yerbaé QPM terminates this Agreement pursuant to Section 8.1(a)(vii)(BSubsection 8.2(a)(iv)(B) and pays Safety Shot the Termination FeeFee pursuant to Section 8.3.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as QPM may approve in writing for such purpose: (ai) the Yerbaé QPM Board shall review any offer made by Safety Shot under this Section 4.4(b) ▇▇▇▇ to amend the terms of this Agreement and the Arrangement in good 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 (bii) Yerbaé QPM shall negotiate in good faith with Safety Shot Fury to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot ▇▇▇▇ to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé QPM Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé QPM shall promptly so advise Safety Shot Fury and Yerbaé QPM and Safety Shot Fury shall amend this Agreement to reflect such offer made by Safety ShotFury, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.47.3, and Safety Shot Fury shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot ▇▇▇▇ received the Superior Proposal Notice and the date on which ▇▇▇▇ received all of the materials set forth in Section 7.4(a)(iv) with respect to the new Superior Proposal from YerbaéQPM.
(d) At the written request of Safety Shot, the Yerbaé The QPM Board shall promptly reaffirm the Yerbaé QPM Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé QPM Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b7.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé QPM shall provide Safety Shot Fury and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot Fury and its counsel.
(e) Nothing in this Agreement shall prohibit If QPM provides a Superior Proposal Notice to Fury on a date that is less than 10 Business Days before the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties date of the Yerbaé Board QPM Meeting, QPM shall (i) if requested in writing by Fury, postpone or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding adjourn the Yerbaé Board shall be permitted QPM Meeting to make such disclosure, the Yerbaé Board a date designated by Fury (which shall not be permitted to make a Change in Recommendation, other more than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review 10 Business Days after the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation scheduled date of the restrictions set forth in this Section 4.4 by QPM Meeting or any previous postponement or adjournment thereof) or (ii) if no such request is made, continue to take all steps necessary to hold with the Yerbaé Subsidiaries or Yerbaé’s or QPM Meeting on its scheduled date and to cause the Yerbaé Subsidiaries’ respective Representatives shall be deemed Arrangement Resolution to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by voted on at the Yerbaé Subsidiaries and its and their respective RepresentativesQPM Meeting.
Appears in 1 contract
Right to Match.
(a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Board may, subject may authorize the Company to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaérestriction;
(iiiii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the good faith determination of the Yerbaé Board Board, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement, together with a copy of the definitive agreement with respect to such Superior Proposal and/or withdraw or modify for the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version disclosure of the proposed agreement value, expressed in dollars, that the Board has, in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under which such the Superior Proposal is proposed to be consummated (collectively, the “Superior Proposal Notice”);
(iviii) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(viv) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(viv) after if the Matching PeriodPurchaser has offered to amend this Agreement and the Arrangement under Section 5.4(b), the Yerbaé Board has determined in good faith, after consultation with its the Company’s financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b)5.4(b); and
(viivi) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(a)(iii)(B) and pays Safety Shot the Termination FeeAmount pursuant to Section 7.4.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (ai) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(a)(iv) to amend the terms of this Agreement and the Arrangement in good 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 (bii) Yerbaé if it would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser, and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or a modification ofto, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new an additional five-Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to the new Superior Proposal from YerbaéNotice.
(d) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(b) would result in an Acquisition Proposal constituting a Superior Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its legal counsel.
(e) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws Superior Proposal Notice to an Acquisition Proposal provided the Purchaser on a date that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review is less than five Business Days before the form and content of such disclosure Company Meeting, the Company may, and shall give reasonable consideration at the request of Purchaser, postpone the Company Meeting to a date that is not more than ten Business Days after the scheduled date of the Company Meeting (and, in any comments made by Safety Shot and its counsel. Furtherevent, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date).
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé the Vendor receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board may, subject may make a Change in Recommendation and authorize the Vendor to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstillstandstill use, non-solicitation business purpose or similar agreement with Yerbaérestriction;
(iiib) Yerbaé the Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Vendor of this Article 3;
(c) the Vendor has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(ivd) the Vendor or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from the Vendor;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b3.4(2), to offer to amend this the Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after if the Matching PeriodPurchaser has offered to amend the Agreement under Section 3.4(2), the Yerbaé 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 Agreement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b3.4(2)); and
(viih) the Board has determined, in good faith, after consultation with the Vendor's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Vendor; and
(i) such Superior Proposal does not require the Vendor or any other Person to seek to interfere with the attempted successful completion of the transactions contemplated by the Agreement or any alternative transaction pursued by the Purchaser pursuant to the terms of the Support and Voting Agreements (including requiring the Vendor to delay, adjourn, postpone or cancel the Vendor 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 Vendor or the Target Corporations to any Person in the event that the Vendor completes the transactions contemplated by the Agreement or any other similar transaction with the Purchaser that was agreed to prior to the termination of the Agreement or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) the Support and pays Safety Shot the Termination FeeVoting Agreements.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodVendor may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b3.4(1)(f) to amend the terms of this the Agreement and the Arrangement in good faith faith, after consultation with the Vendor's outside legal counsel and financial advisers, 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) Yerbaé the Vendor shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this the Agreement or the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this the Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Vendor shall promptly so advise Safety Shot the Purchaser and Yerbaé the Vendor and Safety Shot the Purchaser shall amend this the Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Vendor or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.43.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the date on which the Purchaser received a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Vendor.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this the Agreement or the Plan of Arrangement as contemplated under Section 4.4(b3.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Vendor shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its legal counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Vendor provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser after a date that is less than 10 Business Days before the Yerbaé BoardVendor Meeting, the Vendor shall either proceed with or shall postpone or adjourn the Vendor Meeting, as directed by the Purchaser acting in good faith and upon reasonably, to a date that is not more than 10 Business Days after the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure Vendor Meeting, but in any event to a date that is otherwise required under Applicable Law; providednot less than five Business Days prior to the Outside Date, however, that, notwithstanding to the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as extent permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselLaw.
(f6) Any violation of the restrictions set forth Nothing contained in this Section 4.4 by 3.4 shall limit in any way the Yerbaé Subsidiaries or Yerbaé’s or obligation of the Yerbaé Subsidiaries’ respective Representatives shall be deemed Vendor to be a breach of this convene and hold the Vendor Meeting in accordance with Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by 2.1 hereof while the Yerbaé Subsidiaries and its and their respective RepresentativesAgreement remains in force.
Appears in 1 contract
Sources: Share Purchase Agreement
Right to Match. (a) If Yerbaé receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after During the Matching Period, (i) the Yerbaé Board has determined in good faithboard of directors (other than the Reunion Gold Non-Participating Director or the GMIN Non-Participating Director, after consultation as applicable) of the Solicited Party shall review with its outside financial and legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review advisors any offer made by Safety Shot under this the Other Party pursuant to Section 4.4(b7.3(a)(v) to amend the terms of this Agreement and the Plan of Arrangement in good faith in order to determine (acting in good faith and in accordance with its fiduciary duties) whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which the Solicited Party is responding would continue to be a Superior Proposal; Proposal when assessed against the amended Agreement and Plan of Arrangement as proposed by the Other Party and (bii) Yerbaé the Solicited Party shall negotiate in good faith with Safety Shot the Other Party to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot the Other Party to proceed with the transactions contemplated by this Agreement herein on such amended terms. If the Yerbaé Board board of directors of the Solicited Party (other than the Reunion Gold Non- Participating Director or the GMIN Non-Participating Director, as applicable) determines that such the Acquisition Proposal would thereby cease to be a Superior Proposal, Yerbaé shall it will promptly so advise Safety Shot the Other Party and Yerbaé and Safety Shot the Principal Parties shall amend this Agreement to reflect such offer made by Safety Shotthe Other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(cb) Each successive amendment or modification to of any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders the Solicited Party or its shareholders or amends or modifies other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this the requirement of Section 4.4, 7.3(a) and Safety Shot the Other Party shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect (except that references to the new Superior Proposal from Yerbaéfive Business Days period in the definition of Matching Period shall be deemed to be references to a three Business Days period).
(dc) At The board of directors of the written request of Safety Shot, the Yerbaé Board Solicited Party shall promptly reaffirm the Yerbaé GMIN Board Recommendation or the Reunion Gold Board Recommendation, as applicable, by press news release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board Solicited Party’s board of directors determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) 7.4 would result in an Acquisition Proposal no longer being constituting a Superior Proposal. Yerbaé The Solicited Party shall provide Safety Shot the Other Party and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press new release and shall make all reasonable amendments to such press new release as requested by Safety Shot the Other Party and its legal counsel.
(d) If the Solicited Party provides a Superior Proposal Notice to the Other Party after a date that is five or less Business Days before the Reunion Gold Meeting or the GMIN Meeting, as applicable, the Other Party shall be entitled, at its sole discretion, to require the Solicited Party to the postpone or adjourn the Reunion Gold Meeting or the GMIN Meeting, as applicable (the “Solicited Party Meeting”), to a date acceptable to the Other Party, acting reasonably, that is not more than five Business Days after the scheduled date of the Solicited Party Meeting, as applicable, but in any event the Solicited Party Meeting shall not be postponed or adjourned to a date which would prevent the Effective Date from occurring on a date that is less than five Business Days prior to the Outside Date.
(e) Nothing contained in this Section 7.4 shall limit in any way the obligation of Reunion Gold to convene and hold the Reunion Gold Meeting in accordance with Section 2.3 while this Agreement remains in force. Nothing contained in this Section 7.4 shall limit in any way the obligation of GMIN to convene and hold the GMIN Meeting in accordance with Section 2.5 while this Agreement remains in force.
(f) Nothing in this Agreement shall prohibit the Yerbaé Board prevent either Principal Party or its respective board of directors from responding through a directors’ circular or otherwise as required by Applicable Securities applicable Laws to an Acquisition Proposal that it determines is not a Superior Proposal (provided that Yerbaé shall provide Safety Shot the other Principal Party and its outside legal counsel have been provided with a reasonable opportunity to review and comment on any such response and the form and content board of directors of such disclosure and Principal Party shall give reasonable consideration to any comments made by Safety Shot and its counselsuch comments). Further, nothing in this Agreement shall prevent the Yerbaé GMIN Board or the Reunion Gold Board from making any disclosure to the Yerbaé Shareholders their respective shareholders if the Yerbaé Boardboard of directors of such Principal Party, acting in good faith and upon the advice of following consultation with its outside legal and financial advisorscounsel, shall have first determined that the failure to make such disclosure would be inconsistent with the its fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable by applicable Law; provided, however, that, notwithstanding the Yerbaé Board . The other Principal Party and its advisors shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with given a reasonable opportunity to review and comment on the form and content of any such disclosure and the board of directors of such Principal Party shall give reasonable consideration to any comments made by Safety Shot and its counselsuch comments.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé Corporation receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining receipt of the Yerbaé Required Shareholder ApprovalApproval (including, for greater certainty, any offer described in Section 5.4(1) of the Corporation Disclosure Letter), the Yerbaé Board may(or any special committee thereof) may approve, subject to compliance with Section 8.2, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaérestriction;
(iiib) Yerbaé Corporation has been, and continues to be, in compliance with its obligations under this Article 5;
(c) Corporation has delivered to Safety Shot Purchaser and Guarantor a written notice of the determination of the Yerbaé Board (or any special committee thereof) that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board (or any special committee thereof) to approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which written notice specifies the material terms and conditions together with a copy of such Superior Proposal and provides the most current version of the proposed definitive agreement under which such Superior Proposal is proposed (including any financing documents supplied to be consummated Corporation in connection therewith) (the “"Superior Proposal Notice”");
(ivd) at least ten five (105) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot Purchaser and Guarantor received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from Corporation;
(ve) during any Matching Period, Safety Shot has Purchaser and Guarantor have had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after if Purchaser and Guarantor have offered to amend this Agreement and the Matching PeriodArrangement under Section 5.4(2), the Yerbaé Board (or any special committee thereof) 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Purchaser and Guarantor under Section 4.4(b5.4(2));
(g) the Board has determined in good faith, after consultation with Corporation's outside legal counsel, that the failure of the Board to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendationagreement, Yerbaé Corporation terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) [Superior Proposal] and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as Corporation may approve (in its sole discretion) in writing for such purpose: (a) Purchaser and Guarantor shall have the opportunity, opportunity (but not the obligation, ) to propose offer to amend the terms of Arrangement and this AgreementAgreement in order for such Acquisition Proposal to cease to be a Superior Proposal, including an increase in, or modification of, the Consideration. During the Matching Period: (ab) the Yerbaé Board (or any special committee thereof) shall review any such offer made by Safety Shot under this Section 4.4(b) Purchaser and Guarantor to amend the terms of this Agreement and the Arrangement in good 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 (bc) Yerbaé Corporation shall negotiate in good faith with Safety Shot Purchaser and Guarantor to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board (or any special committee thereof) determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Corporation shall promptly so advise Safety Shot Purchaser and Yerbaé Guarantor and Safety Shot Corporation, Purchaser and Guarantor shall amend this Agreement to reflect such offer made by Safety ShotPurchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive material amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot Purchaser and Guarantor shall be afforded a new five (5)-Business Day Matching Period from the later of the date on which Safety Shot Purchaser and Guarantor received the Superior Proposal Notice with respect to for the new Superior Proposal from YerbaéCorporation.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé Corporation shall provide Safety Shot Purchaser, Guarantor and its outside their legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot Purchaser, Guarantor and its their legal counsel.
(e5) If Corporation provides a Superior Proposal Notice to Purchaser after a date that is less than ten (10) Business Days before the Meeting, Corporation shall be entitled to and shall upon request from Purchaser acting reasonably postpone the Meeting to a date that is not more than 15 Business Days after the scheduled date of the Meeting (and in any event, prior to the Outside Date).
(6) Nothing contained in this Agreement Article 5 shall prohibit the Yerbaé Board from (or any special committee thereof) from:
(a) responding through a directors’ ' circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé Corporation shall provide Safety Shot Purchaser and its legal counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration circular or other disclosure; or
(b) calling or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the CBCA or taking any other action with respect to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure an Acquisition Proposal to the Yerbaé Shareholders if the Yerbaé Board, acting extent ordered or otherwise mandated by a court of competent jurisdiction in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent accordance with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement (Clementia Pharmaceuticals Inc.)
Right to Match. 7.3.1 Aurizon covenants that it will not accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless:
(a) If Yerbaé receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé Aurizon has been, and continues to be, in compliance complied with its obligations under this Article 4 in all respects Section 7.2 including providing to Hecla a copy of any agreement to implement the Superior Proposal and any supporting documents, including the terms of any proposal to provide financing for such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesSuperior Proposal;
(iib) the Person person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purpose or similar agreement with Yerbaérestriction in favour of Aurizon;
(iiic) Yerbaé Aurizon has delivered to Safety Shot a written notice to Hecla of the its determination of the Yerbaé Board that such Acquisition Proposal constitutes is a Superior Proposal and of the intention of the Yerbaé Board that it intends to accept, endorse, approve, recommend or enter into such definitive an agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which together with a written notice specifies from the material Aurizon Board setting out the value and financial terms and conditions of that the Aurizon Board has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which basis for such Superior Proposal is proposed to be consummated determination in reasonable detail;
(d) a period (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Response Period”) have of five business days has elapsed from the date that is the later of (i) the date on which Safety Shot received Hecla receives written notice from the Aurizon Board that the Aurizon Board has determined, subject only to compliance with this Section 7.3, to accept, approve, endorse, recommend or enter into a binding agreement to proceed with such Superior Proposal; and (ii) the date Hecla receives a copy of the Superior Proposal Noticeand all related documentation described in Section 7.2.4;
(ve) during any Matching Response Period, Safety Shot Hecla has had the opportunity (but not the obligation), in accordance with Section 4.4(b), ) to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after if Hecla has offered to amend this Agreement and the Matching PeriodArrangement under Section 7.3.1(e), the Yerbaé Aurizon 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Hecla under Section 4.4(b7.3.1(e)); and (ii) has determined in good faith, after consultation with its outside legal counsel, that it is necessary for the Aurizon Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viig) prior to or concurrently with entering into such any definitive agreement or withdrawing or modifying the Yerbaé Board Recommendationwith respect to a Superior Proposal, Yerbaé Aurizon terminates this Agreement and pays the Termination Fee pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee7.4.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during 7.3.2 During the Matching Response Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Aurizon may approve in writing for such purpose: (a) the Yerbaé Aurizon Board shall review any offer made by Safety Shot Hecla under this Section 4.4(b) 7.3.1 to amend the terms of this Agreement and the Arrangement in good faith after consultation with outside legal 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) Yerbaé Aurizon shall negotiate in good faith with Safety Shot Hecla to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Hecla to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Aurizon Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Aurizon shall promptly so advise Safety Shot Hecla and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety ShotHecla, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 7.3.3 Nothing contained in this Article 7 shall limit in any way Aurizon’s obligation to call and hold the Aurizon Meeting.
7.3.4 Where at any time before the Aurizon Meeting, Aurizon has provided Hecla with a notice under Section 7.2.4, or an Acquisition Proposal has been publicly disclosed or announced and in either case the Response Period has not elapsed, then, subject to applicable Laws, at Hecla’s request, Aurizon will postpone or adjourn the Aurizon Meeting to a date acceptable to Hecla, acting reasonably.
7.3.5 Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the Aurizon Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot Hecla shall be afforded a new Matching Response Period from and the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth rights afforded in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach 7.3 in respect of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representativeseach such Acquisition Proposal.
Appears in 1 contract
Right to Match.
(a) If Yerbaé Great Canadian receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining before the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Shareholders, the Yerbaé Board Great Canadian may, subject to compliance with Section 8.2Article 8, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal or the Board may make a Change in Recommendation, if and only if:if:
(i) Yerbaé Great Canadian has been, and continues to be, in compliance with its obligations under this Article 4 7 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Great Canadian has delivered to Safety Shot RAC a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to terminate this Agreement and enter into such into a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iii) Great Canadian has provided RAC a copy of the proposed definitive agreement for the Superior Proposal (if any) and all ancillary documentation and supporting materials related to and detailing the Superior Proposal (including any financing documents subject to customary confidentiality provisions) provided to Great Canadian, including the cash value that the Board has, after consultation with outside financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(iv) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the later of the date on which Safety Shot RAC received the Superior Proposal NoticeNotice and (ii) the date on which RAC received a copy of the documentation referred to in Section 7.4(a)(iii) above with respect to such Superior Proposal;
(v) during any Matching Period, Safety Shot RAC has had the opportunity (but not the obligation), in accordance with Section 4.4(b7.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vi) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot RAC under Section 4.4(b7.4(b))) and, after consultation with its outside legal counsel that the failure to take such actions would be inconsistent with the Board’s fiduciary duties; and
(vii) prior to before or concurrently with entering into such a definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Great Canadian terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.2(d)(i) and pays Safety Shot the Great Canadian Termination FeeFee pursuant to Section 8.3.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Great Canadian may approve in writing for such purpose: (a) the Yerbaé Board shall will review any offer made by Safety Shot RAC under this Section 4.4(b7.4(a) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall Great Canadian will negotiate in good faith with Safety Shot RAC to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot RAC to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall Great Canadian will promptly so advise Safety Shot RAC and Yerbaé and Safety Shot shall the Parties will amend this Agreement to reflect such offer made by Safety ShotRAC, and shall will take and cause to be taken all such actions as are are necessary to give effect to the foregoing, including promptly re-affirming the Board Recommendation to the Shareholders.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall will constitute a new Acquisition Proposal for the purposes of this Section 4.47.4, and Safety Shot shall RAC will be afforded a new five Business Day Matching Period from the later of (i) the date on which Safety Shot RAC received the new Superior Proposal Notice with respect to the such new Superior Proposal from YerbaéProposal, and (ii) the date on which RAC received a copy of the documentation referred to in Section 7.4(a)(iii) above with respect to such new Superior Proposal.
(d) At the written request of Safety Shot, the Yerbaé The entire Board shall will promptly reaffirm the Yerbaé Board Recommendation by press release after after: (i) the Board determines any Acquisition Proposal which the Yerbaé Board that has determined not to be a Superior Proposal is been publicly announced or publicly disclosed is not a Superior Proposal; or (ii) the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an any Acquisition Proposal no longer which has been publicly announced or made not being a Superior Proposal, and RAC has so amended the terms of the Arrangement. Yerbaé shall provide Safety Shot RAC and its outside legal counsel with will be given a reasonable opportunity to review and comment on the form and content of any such press release and shall Great Canadian will make all reasonable amendments to such press release as requested by Safety Shot RAC and its legal counsel.
(e) Nothing If Great Canadian provides a Superior Proposal Notice to RAC on a date that is less than 7 Business Days before the Meeting, Great Canadian will be entitled to, and will upon request from RAC, postpone such Meeting in accordance with the terms of this Agreement shall prohibit to a date specified by RAC that is not more than 7 days after the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal scheduled date of the Meeting, provided that Yerbaé shall provide Safety Shot and its counsel with in no event will such adjourned or postponed meeting be held on a reasonable opportunity to review date that is less than 7 Business Days before the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.Outside Date.
(f) Any Great Canadian will advise its subsidiaries and its Representatives of the prohibitions set out in this Section 7.4 and any violation of the restrictions set forth in this Section 4.4 7.4 by the Yerbaé Subsidiaries a subsidiary of Great Canadian or Yerbaé’s a Representative or the Yerbaé Subsidiaries’ respective Representatives shall Great Canadian or a subsidiary will be deemed to be a breach of this Section 4.4 7.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall Great Canadian for which Great Canadian will be responsible for responsible.
(g) RAC agrees that all information provided to it by Great Canadian with respect to any breach actual or contemplated Superior Proposal pursuant to this Article 7 will be treated as if it were “Information” as that term is defined in the Confidentiality Agreement and will not be disclosed or used by RAC except in accordance with provisions of the Confidentiality Agreement or in order to enforce its rights under this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesAgreement in legal proceedings.
8.1 Term
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder Approval, the Yerbaé Board may, or may cause the Company to, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure or similar agreement with Yerbaéagreement, restriction or covenant;
(iiib) Yerbaé such Acquisition Proposal did not result from a breach of Article 5, other than a de minimis breach;
(c) the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to authorize the Company to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including the Yerbaé value in financial terms that the Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company has provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal, together with all related documents, including shareholder voting and support agreements, financing commitment papers and any rollover, reinvestment or similar agreements;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of all of the materials referred to in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot (i) the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé (ii) the Company has negotiated, and caused its Representatives to negotiate, negotiated in good faith with Safety Shot the Purchaser (to the extent Safety Shot wishes the Purchaser desires to negotiate negotiate) regarding any revisions amendments proposed by the Purchaser to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)and the Plan of Arrangement;
(vig) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that (i) such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2)), and (ii) the failure by the Board to authorize the Company to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) [Superior Proposal] and pays Safety Shot to Purchaser (or as directed by the Purchaser) concurrently with and as a condition of such termination of this Agreement, the Termination Fee, pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in its sole discretion in writing for such purpose: (a) the Yerbaé Purchaser shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal and the Board shall (and Special Committee) shall, in consultation with the outside legal counsel and financial advisors, review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé if the Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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) consideration to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to for the new Superior Proposal from Yerbaéand a copy of the proposed definitive agreement for the new Superior Proposal.
(d4) At The Board shall, within five (5) Business Days from the written Purchaser’s reasonable request of Safety Shotto do so, reaffirm (subject to Section 5.1(1)(d)) the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all give reasonable amendments consideration to such press release as requested any comments provided by Safety Shot the Purchaser and its outside legal counsel.
(e5) Nothing If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than ten (10) Business Days before the Meeting, the Company shall be entitled to and shall upon request from the Purchaser postpone the Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the Meeting, but in any event to a date that is not less than five (5) Business Days prior to the Outside Date.
(6) Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement shall prohibit the Yerbaé Company or the Board from (a) complying with Rules 14d-9 and 14e-2(a) under the Exchange Act or similar Laws under other Securities Law, including a “stop, look and listen” communication by the Board or the Special Committee, as applicable, to Shareholders pursuant to Rule 14d-9(f) under the Exchange Act (or any substantially similar communication); (b) complying with Item 1012(a) of Regulation M-A under the Exchange Act; (c) complying with the Company’s disclosure obligations under Securities Law; or (d) making a Change in Recommendation or from making any disclosure to any securityholders of the Company prior to the Effective Time, including for greater certainty disclosure of a Change in Recommendation, if, in the good faith judgment of the Board, after consultation with outside legal counsel and upon the recommendation of the Special Committee, failing to take such action or make such disclosure would reasonably be expected to be inconsistent with the Board’s exercise of its fiduciary duties or such action or disclosure is otherwise required by Law (including by responding to an Acquisition Proposal under a directors’ circular or otherwise as required by Law); provided that, for greater certainty, in the event of a Change in Recommendation and a termination by the Purchaser of this Agreement pursuant to Section 7.2(1)(d)(ii), the Company shall be obligated to pay the Termination Fee as required by Section 8.2(2). The Board may not make a Change in Recommendation pursuant to the preceding sentence unless the Company gives the Purchaser at least two (2) Business Days prior written notice of its intention to make such Change in Recommendation, provided that, for greater certainty, the foregoing limitation shall not apply in respect of any actions taken under Section 5.4(1). Should the Board make a Change in Recommendation in accordance with the foregoing, Section 4.10 shall no longer be applicable to disclosures made by the Company. In addition, nothing contained in this Agreement shall prohibit the Company or the Board from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel it determines is not a Superior Proposal, or calling or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the QBCA or taking any other action with respect to an Acquisition Proposal to the extent ordered or otherwise mandated by a reasonable opportunity to review court of competent jurisdiction in accordance with Law.
(7) From the form and content date of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent until the Yerbaé Board from making earlier to occur of the termination of this Agreement pursuant to Article 7 and the Effective Time, the Company will not be required to enforce, and will be permitted to waive, any disclosure provision of any standstill or confidentiality agreement to the Yerbaé Shareholders if extent necessary to permit a confidential proposal being made to the Yerbaé BoardBoard (or any committee thereof); provided, acting that, the Board has determined in good faith and upon the advice of its (after consultation with outside legal and financial advisors, shall have determined counsel) that the failure to make take such disclosure action would be inconsistent with the its fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselduties.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Board maymay make a Change in Recommendation and approve, subject to compliance with Section 8.2, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstillstandstill use, non-solicitation business purpose or similar agreement with Yerbaérestriction;
(iiib) Yerbaé the Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Company of this Article 5 or the Exclusivity Agreement;
(c) the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement agreement, together with respect a written notice from the Board regarding the value and financial terms that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Acquisition Proposal (the "Superior Proposal and/or withdraw Notice") together with all documentation related to and detailing the Superior Proposal;
(d) the Company or modify its Representatives has provided the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version Purchaser a copy of the proposed definitive agreement under which such for the Superior Proposal is proposed to be consummated (at the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received time it delivered the Superior Proposal Notice;
(ve) at least five (5) Business Days (the "Matching Period") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and a copy of the proposed definitive agreement for the Superior Proposal from the Company;
(f) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 Safety Shot the Purchaser under Section 4.4(b5.4(2));
(h) the Board has determined, in good faith, after consultation with the Company's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(viii) 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 Support and Voting 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 entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates termination of this Agreement or pursuant to Section 8.1(a)(vii)(B) the Support and pays Safety Shot the Termination FeeVoting Agreements.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and a copy of the proposed definitive agreement for the new Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing while this Agreement remains in force.
(7) Nothing contained in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent complying with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.section
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution, the Yerbaé Board may, subject may make a Change in Recommendation or may cause the Company to compliance with Section 8.2, terminate this Agreement and enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal (an “Alternative Acquisition Agreement”), if and only if:
(ia) Yerbaé has been, and continues to be, in compliance with such Superior Proposal did not result from a breach by the Company of its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respect;
(iib) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purpose or similar agreement with Yerbaérestriction;
(iiic) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to make a Change in Recommendation or to terminate this Agreement to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendationan Alternative Acquisition Agreement, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version including a copy of the proposed agreement under which such Superior Proposal is proposed to be consummated Alternative Acquisition Agreement if applicable (the “Superior Proposal Notice”);
(ivd) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot the Purchaser received the Superior Proposal Notice;
(ve) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vif) after the Matching Period, the Yerbaé Board has determined in good faith, after consultation with its outside legal counsel and financial advisorsadvisor(s), 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 Safety Shot the Purchaser under Section 4.4(b5.4(2))) and failure to take the relevant action would be inconsistent with its fiduciary duties; and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying an Alternative Acquisition Agreement the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.1(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 7.3(2) .
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith and in consultation with outside legal and financial advisor(s) in order to determine whether such proposal offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement Transactions on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the Purchaser shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéthree Business Days.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly (and in any event with five Business Days) reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is publicly announced is determined to not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counselrelease.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser on a date that is less than five Business Days before the Yerbaé BoardCompany Meeting, the Company shall either proceed with or shall postpone the Company Meeting, as directed by the Purchaser acting in good faith and upon reasonably, to a date that is not more than five Business Days after the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding Company Meeting but in any event the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meeting shall not be permitted postponed to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity date which would prevent the Effective Date from occurring on or prior to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Corporation receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder Approval, the Yerbaé Board maymay (based upon, amongst other things, the recommendation of the Special Committee), subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal and make a Change in Recommendation, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, non-solicitation or similar agreement, restriction or covenant contained in any Contract entered into with the Corporation or any of its Subsidiaries;
(b) the Corporation has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Corporation has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement and to make a Change in Recommendation with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(ivd) the Corporation has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Corporation in connection therewith, subject to, in the case of financing documents, customary confidentiality provisions with respect to fee letters or similar information;
(e) at least ten five (105) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials referred to in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board (i) has determined in good faith, after consultation with its the Corporation's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of this Agreement and the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) determined in good faith, after consultation with the Corporation's outside legal counsel that that the failure by the Board to cause the Corporation to enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board and making a Change in Recommendation, Yerbaé the Corporation terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) [Superior Proposal] and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCorporation may approve (in its sole discretion) in writing for such purpose: (a) the Yerbaé Purchaser shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal and the Board shall shall, in consultation with the Corporation's outside legal counsel and financial advisers, review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Corporation shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board (based upon, inter alia, the recommendation of the Special Committee) determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Corporation shall promptly so advise Safety Shot the Purchaser and Yerbaé the Corporation and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new full five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials referred to in Section 5.4(1)(d) with respect to the each new Superior Proposal from Yerbaéthe Corporation.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation (based upon, inter alia, the recommendation of the Special Committee) by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Corporation shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its outside legal counsel. Notwithstanding anything to the contrary in this Agreement, in the event that the Board is permitted to enter into a definitive agreement with respect to a Superior Proposal and make a Change in Recommendation in accordance with the terms of this Agreement, the Corporation shall have no obligation to consult with the Purchaser prior to making any disclosure related to such decision to enter into a definitive agreement and Change in Recommendation.
(e5) Nothing If the Corporation provides a Superior Proposal Notice to the Purchaser on a date that is less than ten (10) Business Days before the Meeting, the Corporation shall be entitled to and upon request from the Purchaser, postpone the Meeting to a date that is not more than 15 Business Days after the scheduled date of the Meeting, but in any event to a date that is less than five (5) Business Days prior to the Outside Date.
(6) Notwithstanding anything to the contrary set forth in this Agreement (including this Article 5), nothing shall prohibit the Yerbaé Board from (or the Special Committee) from:
(a) responding through a directors’ ' circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal provided that Yerbaé the Corporation shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment the form and content of such circular or other disclosure and shall give reasonable consideration to any comments made by Safety Shot the Purchaser and its outside legal counsel. Further, nothing ;
(b) calling or holding a meeting of Shareholders requisitioned by Shareholders in this Agreement shall prevent accordance with the Yerbaé Board from making CBCA; or
(c) taking any action to fulfill its disclosure or legal obligations to Shareholders prior to the Yerbaé Shareholders Effective Time if the Yerbaé Board, acting after consultation with outside legal counsel and financial advisers, has determined in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the a failure to take such action or make such disclosure would reasonably be expected to be inconsistent with the Board's exercise of its fiduciary duties of the Yerbaé Board or such action or disclosure is otherwise required under Applicable applicable Law or ordered or otherwise mandated by a court of competent jurisdiction in accordance with applicable Law; provided, however, that, notwithstanding provided however that (i) except in circumstances where the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be is permitted to make a Change in RecommendationRecommendation in accordance with the terms of this Agreement, other than as permitted by Section 4.4(a) and provided that Yerbaé the Corporation shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment the form and content of such any disclosure to be made pursuant to this paragraph, and shall give reasonable consideration to any comments made by Safety Shot the Purchaser and its outside legal counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.and
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé receives The Company covenants and agrees that for a period of six (6) months after the termination of this Agreement pursuant to Section 8.2(b) or 8.2(c) it will not accept, approve, recommend or enter into any agreement, understanding, arrangement or Contract in respect of an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only ifunless:
(i) Yerbaé the Company has beenpromptly (and in any event within 48 hours of receipt by the Company) notified the Parent, orally and continues to bethereafter in writing, in compliance with its obligations under this Article 4 in all respects and such of any Acquisition Proposal was or inquiry received (whether or not initiatedrelating to any Acquisition Proposal or inquiry received) that could reasonably be expected to lead to an Acquisition Proposal, solicitedof which any of its directors, knowingly encouraged officers, Financial Advisor or knowingly facilitated by Yerbaé other agents are or become aware, or any amendments to the foregoing, or any request for non-public information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the Yerbaé Subsidiaries properties, books or records of the Company or any of their respective Representatives;
(ii) the its Subsidiaries by any Person making the in connection with an Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot and a written notice description of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of any such Superior Acquisition Proposal or inquiry, and provides thereafter the most current version Company shall keep the Parent informed of any change to the proposed agreement under which material terms of any such Superior Acquisition Proposal is proposed to be consummated or inquiry; and
(ii) a period (the “Superior Proposal Notice”);
(iv"RESPONSE PERIOD") at least of ten (10) full Business Days (the “Matching Period”) shall have elapsed from the date on which Safety Shot the Parent received written notice from the Superior Proposal Notice;
(v) during any Matching Periodboard of directors of the Company that the board of directors of the Company determined, Safety Shot has had the opportunity (but not the obligation), in accordance subject only to compliance with this Section 4.4(b)7.3, to offer accept, approve, recommend or enter into a binding agreement to amend this Agreement and proceed with the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination FeeProposal.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Response Period, Safety Shot shall the Purchaser and the Parent will have the opportunityright, but not the obligation, to propose offer to amend match the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the "MATCHING PROPOSAL"). The Company shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed enter into an agreement with the transactions contemplated by this Agreement on Purchaser and/or the Parent implementing the Matching Proposal as soon as reasonably practicable after the Company's receipt from the Purchaser or Parent of such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Matching Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the holders of securities of the Company shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot the Purchaser and the Parent shall be afforded a new Matching Response Period from the later in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéeach such Acquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement (Radisys Corp)
Right to Match. (a) If Yerbaé receives an Acquisition Proposal Each Party covenants and agrees that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or it will not make a Change in Recommendation with or accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect to such of a Superior Proposal, if Proposal (other than a confidentiality and only ifstandstill agreement permitted by Section 7.2(b)) unless:
(i) Yerbaé the Party receiving such proposal (the “Receiving Party”) has been, and continues to be, in compliance complied with its obligations under this Article 4 in Section 7.2 and has provided the other Party (the “Responding Party”) with a copy of all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of documentation relating to the Yerbaé Subsidiaries or any of their respective Representatives;Superior Proposal; and
(ii) a period (the Person making “Response Period”) of five (5) business days has elapsed from the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;date that is the later of:
(iiiA) Yerbaé has delivered to Safety Shot a the date on which the Responding Party receives written notice from the board of directors of the determination of the Yerbaé Board Receiving Party that such Acquisition Proposal constitutes board of directors has determined, subject only to compliance with this Section 7.3, to make a Superior Proposal and of the intention of the Yerbaé Board to Change in Recommendation or accept, approve, endorse, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);Proposal; and
(ivB) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Responding Party receives all documentation relating to the Superior Proposal Notice;Proposal.
(vb) during any Matching During the Response Period, Safety Shot has had the opportunity (Responding Party will have the right, but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Plan of Arrangement. The board of directors of the Receiving Party shall review any such offer by the Responding Party to amend this Agreement and the Plan of Arrangement in order for such to determine whether the Acquisition Proposal to cease which the Responding Party is responding would continue to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of when assessed against the Arrangement as it is proposed in writing by the Responding Party to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying amended. If the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot board of directors of the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in Receiving Party determines that the Acquisition Proposal previously constituting a Superior Proposal ceasing to be no longer constitutes a Superior Proposal; and (b) Yerbaé shall negotiate in good faith , such board of directors will cause the Receiving Party to enter into an amendment to this Agreement with Safety Shot to make such the Responding Party incorporating the amendments to the terms of this Agreement or the and Plan of Arrangement as would enable Safety Shot set out in the written offer to proceed with amend, and will promptly reaffirm its recommendation of the transactions contemplated Arrangement by this Agreement on such amended termsthe prompt issuance of a press release to that effect. If the Yerbaé Board board of directors of the Receiving Party determines that such the Acquisition Proposal would cease continues to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot the Receiving Party may approve and Yerbaé recommend that shareholders of the Receiving Party accept such Superior Proposal and Safety Shot shall amend may terminate this Agreement pursuant to reflect such offer made by Safety ShotSection 8.2(a)(iii)(B) or Section 8.2(a)(iv)(B), and shall take and cause as applicable, in order to be taken all such actions as are necessary accept or enter into an agreement, understanding or arrangement to give effect to proceed with the foregoingSuperior Proposal.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé Shareholders or other material terms or conditions thereof the shareholders of the Receiving Party shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot the Responding Party shall be afforded a new Matching Response Period from and the later rights afforded in Section 7.3(b) in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéeach such Acquisition Proposal.
(d) At Where at any time within ten (10) days before the written request of Safety ShotSunward Meeting or the NovaCopper Meeting, as applicable, the Yerbaé Board shall promptly reaffirm Receiving Party has provided the Yerbaé Board Recommendation by press release after any Responding Party with a notice under Section 7.3(a) hereof, an Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or been publicly disclosed or announced, and the Yerbaé Board determines Response Period has not elapsed, then, subject to applicable Laws, at the Responding Party’s request, the Receiving Party will postpone or adjourn the Sunward Meeting or the NovaCopper Meeting, as applicable, to a date acceptable to the Responding Party, acting reasonably, which shall not be later than ten (10) days after the scheduled date of the Sunward Meeting or the NovaCopper Meeting, as applicable, and shall, in the event that a proposed amendment to the Parties amend the terms of this Agreement or pursuant to Section 7.3(b), ensure that the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content details of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this amended Agreement shall prevent the Yerbaé Board from making any disclosure are communicated to the Yerbaé Shareholders if shareholders as the Yerbaé Board, acting in good faith and upon Receiving Party prior to the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties resumption of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counseladjourned meeting.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Corporation receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Shareholders, the Yerbaé Board maymay (based upon, inter alia, the recommendation of the Independent Committee), subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal or withdraw or modify the Board Recommendation, if and only if:
: (i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purpose or similar agreement restriction with Yerbaéthe Corporation or any of its Subsidiaries;
(iii2) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after During the Matching Period, or such longer period as the Yerbaé Board has determined Corporation may approve in good faith, after consultation with its outside legal counsel and financial advisors, that writing for such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodpurpose: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.Purchaser under
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new full five Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Proposal from Yerbaéthe Corporation.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation (based upon, inter alia, the recommendation of the Independent Committee) by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Corporation shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Corporation provides a Superior Proposal Notice to the Purchaser on a date that is less than ten Business Days before the Meeting, the Corporation shall upon request from the Purchaser, acting reasonably, postpone the Meeting to a date that is not more than fifteen Business Days after the scheduled date of the Meeting, but in any event the Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(6) Nothing contained in this Section 5.4 will limit in any way the obligation of the Corporation to convene and hold the Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Article 5 shall prohibit the Yerbaé Board from (or the Independent Committee) from: (a) responding through a directors’ circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé the Corporation shall provide Safety Shot the Purchaser and its legal counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board circular or such disclosure is otherwise required under Applicable Lawother disclosure; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.or
Appears in 1 contract
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Company Board may, subject may authorize the Company to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal or may make a Change in Recommendation, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaérestriction;
(iiiii) Yerbaé the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Company Board to enter into such definitive agreement make a Change in Recommendation with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Company Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (collectively, the “Superior Proposal Notice”);
(iii) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(iv) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the material referred to in Section 5.4(a)(iii);
(v) during any after the Matching Period, Safety Shot the Company Board has had determined in good faith, after consultation with the Company’s outside legal counsel and financial advisers, 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(b)); and
(vi) prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 7.2(a)(iii)(B) and pays the Termination Amount pursuant to Section 8.2(c).
(b) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) the Purchaser shall have the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.,
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé C▇▇▇▇▇ receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes or may constitute a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the C▇▇▇▇▇ Shareholders and C▇▇▇▇▇ Optionholders, the Yerbaé C▇▇▇▇▇ Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Acquisition Proposal, that is a Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(b) C▇▇▇▇▇ has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé C▇▇▇▇▇ has delivered to Safety Shot Starcore a written notice of the determination of the Yerbaé C▇▇▇▇▇ Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé C▇▇▇▇▇ Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material C▇▇▇▇▇ Board regarding the value and financial terms and conditions of that the C▇▇▇▇▇ Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) C▇▇▇▇▇ has provided Starcore a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot Starcore received the Superior Proposal NoticeNotice and a copy of the proposed definitive agreement for the Superior Proposal from C▇▇▇▇▇;
(vf) during any Matching Period, Safety Shot Starcore has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Periodif applicable, the Yerbaé C▇▇▇▇▇ Board has determined in good faith, after consultation with its C▇▇▇▇▇’▇ outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot Starcore under Section 4.4(b5.4(2));
(h) the C▇▇▇▇▇ Board has determined in good faith, after consultation with C▇▇▇▇▇’▇ outside legal counsel that it is necessary for the C▇▇▇▇▇ Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties;
(i) such Superior Proposal does not provide for the payment of any break, termination or other fees or expenses to any person in the event that C▇▇▇▇▇ completes the transactions with Starcore contemplated by this Agreement or any other similar transaction with Starcore agreed to prior to the termination of this Agreement; and
(viij) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé C▇▇▇▇▇ terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) YDuring the Matching Period, or such longer period as C▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodmay approve in writing for such purpose: (a) the Yerbaé C▇▇▇▇▇ Board shall review any offer made by Safety Shot Starcore under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé C▇▇▇▇▇ shall negotiate in good faith with Safety Shot Starcore to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot Starcore to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé C▇▇▇▇▇ Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé C▇▇▇▇▇ shall promptly so advise Safety Shot Starcore, and Yerbaé C▇▇▇▇▇ and Safety Shot Starcore shall amend this Agreement to reflect such offer made by Safety ShotStarcore, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.3, and Safety Shot Starcore shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot Starcore received the Superior Proposal Notice with respect to and a copy of the definitive agreement for the new Superior Proposal from YerbaéC▇▇▇▇▇.
(d4) At the written request of Safety Shot, the Yerbaé The C▇▇▇▇▇ Board shall promptly reaffirm the Yerbaé C▇▇▇▇▇ Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé C▇▇▇▇▇ Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé C▇▇▇▇▇ shall provide Safety Shot Starcore and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot Starcore and its counsel.
(e5) If C▇▇▇▇▇ provides a Superior Proposal Notice to Starcore after a date that is less than ten (10) Business Days before the C▇▇▇▇▇ Meeting, C▇▇▇▇▇ shall either proceed with or shall postpone the C▇▇▇▇▇ Meeting, as directed by Starcore to a date that is not more than ten (10) Business Days after the scheduled date of the C▇▇▇▇▇ Meeting.
(6) Nothing contained in this Section 5.3 shall limit in any way the obligation of C▇▇▇▇▇ to convene and hold the C▇▇▇▇▇ Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Article 5 shall prohibit the Yerbaé C▇▇▇▇▇ Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Yerbaé C▇▇▇▇▇ shall provide Safety Shot Starcore and its outside legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give make all reasonable consideration to any comments made amendments as requested by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot Starcore and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement (Starcore International Mines Ltd.)
Right to Match. (a1) If Yerbaé Notwithstanding anything in this Agreement, but without limiting, and subject to compliance with, the remaining provisions of this Section 5.4 and Article 7 and Section 8.2, if the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Board may, subject to compliance with Article 7 and Section 8.2, terminate this Agreement in order, to enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement restriction with Yerbaéthe Company or any of its Subsidiaries;
(iiib) Yerbaé the Company has not breached its obligations under Section 5.1(1) in any non-de minimis respect or under any other provision of Article 5 in any material respect;
(c) the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to authorize the Company to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company or any of its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal, together with all related agreements (including any financing commitments or other documents containing any material terms or conditions of such Superior Proposal);
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to authorize that the Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; and
(viih) prior to or concurrently simultaneously with so entering into such definitive agreement or withdrawing or modifying agreement, the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Company may approve in writing for such purpose:
(a) the Purchaser shall have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreement, including an increase in, or modification of, Agreement and the Consideration. During the Matching Period: Arrangement;
(ab) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement in good 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 ;
(bc) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Company and the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If ; and
(d) if the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive Any amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration (consideration or value of such Consideration) consideration to be received by Yerbaé the Company Shareholders or other amendment or modification of the material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the such new Superior Proposal from YerbaéProposal.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an any Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company Meeting is to be held during a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review Matching Period, the form and content of such disclosure Company may, and shall give reasonable consideration at the request of the Purchaser, postpone or adjourn the Company Meeting to a date that is not more than ten (10) Business Days after the scheduled date of the Company Meeting, but in any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall event to a date that would not prevent the Yerbaé Board Effective Date from making any disclosure occurring prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f6) Any violation If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than seven (7) Business Days before the Company Meeting, the Company, shall if requested by the Purchaser, postpone or adjourn the Company Meeting to a date designated by the Purchaser that is not more than ten (10) Business Days after the scheduled date of the restrictions set forth in this Section 4.4 Company Meeting, as directed by the Yerbaé Subsidiaries or Yerbaé’s or Purchaser, but in any event to a date that is not less than three (3) Business Days prior to the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesOutside Date.
Appears in 1 contract
Sources: Arrangement Agreement (LKQ Corp)
Right to Match. (a) If Yerbaé Notwithstanding Section 7.2, or anything to the contrary in this Agreement, if at any time following the date of this Agreement and prior to obtaining the Company Securityholder Approval or the Acquiror Shareholder Approval, as applicable, a Party receives an Acquisition Proposal that the Yerbaé Company Board determinesor Acquiror Board, as applicable, concludes in good faith faith, after consultation with its financial advisors and outside financial and legal advisorscounsel, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder ApprovalProposal, the Yerbaé Board may, subject to compliance with Section 8.2, it may enter into a definitive agreement or make a Change an Acquisition Agreement in Recommendation with respect to of such Superior Proposal, if and only ifprovided that:
(i) Yerbaé the Party receiving the Superior Proposal has been, and continues to be, complied in compliance all material respects with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective RepresentativesSection 7.2;
(ii) the Person making Party receiving the Superior Proposal has provided the other Party with (A) a copy of the Superior Proposal, and (B) a copy of the proposed Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with YerbaéAgreement;
(iii) Yerbaé such Party has delivered to Safety Shot the other Party a written notice of the determination of the Yerbaé Company Board or Acquiror Board, as applicable, that such Acquisition Proposal constitutes a Superior Proposal Proposal, and of the intention of the Yerbaé Company Board or Acquiror Board, as applicable, to (A) make a Change in Recommendation and/or (B) enter into such definitive agreement an Acquisition Agreement with respect to such Superior Proposal and/or withdraw or modify (collectively the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “"Superior Proposal Notice”");
(iv) at least ten a period (10the "Response Period") full of not less than five Business Days (the “Matching Period”) have has elapsed from the date that is the later of: (x) the date on which Safety Shot received the other Party receives the Superior Proposal Notice;; and (y) the date on which the relevant Party receives a copy of the Superior Proposal and all related documents described in Section 7.2(d); and
(v) during any Matching Period, Safety Shot if the other Party has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer offered to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to under Section 4.4(b7.3(b);
(vi) after the Matching Period, the Yerbaé Company Board or Acquiror Board, as applicable, has determined in good faith, after consultation with its financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the other Party under Section 4.4(b7.3(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Response Period, Safety Shot shall the other Party will have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Plan of Arrangement, including modification of the Consideration. The Party that delivered the Superior Proposal Notice shall review any such offer by the other Party to amend this Agreement and the Plan of Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which the other Party is responding would continue to be a Superior Proposal when assessed against the Arrangement as it is proposed in writing by the other Party to be amended. If the Party that delivered the Superior Proposal Notice determines that the Acquisition Proposal no longer constitutes a Superior Proposal; and (b) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of , when assessed against this Agreement or and the Plan of Arrangement as would enable Safety Shot they are proposed to proceed be amended by the other Party, the Party that delivered the Superior Proposal Notice will enter into an amendment to this Agreement with the transactions contemplated other Party incorporating the amendments to the Agreement and Plan of Arrangement as set out in the written offer to amend, and will promptly reaffirm its recommendation of the Arrangement by this Agreement on such amended termsthe prompt issuance of a press release to that effect. If the Yerbaé Board Party that delivered the Superior Proposal Notice determines that such the Acquisition Proposal would cease continues to be a Superior Proposal, Yerbaé shall promptly it may enter into the Acquisition Agreement in respect of such Superior Proposal provided that before doing so advise Safety Shot and Yerbaé and Safety Shot shall amend it terminates this Agreement and pays the Company Termination Fee pursuant to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoingSection 8.2(c)(i).
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof the holders of the applicable Party's securities shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.3 and Safety Shot the other Party shall be afforded a new Matching Response Period from and the later rights afforded in Section 7.3(d) in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéeach such Acquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board Where a Party has determined not to be provided a Superior Proposal Notice on a date that is publicly announced or publicly disclosed less than ten days before the Company Meeting or the Yerbaé Board determines Acquiror Meeting, as applicable, and the Response Period has not elapsed, then, subject to applicable Laws, at either Party's request, the Parties will postpone or adjourn the Company Meeting and the Acquiror Meeting, to a date acceptable to the Parties, acting reasonably, which shall not be later than 15 days after the scheduled date of the Company Meeting and the Acquiror Meeting (and, in any event, prior to the Outside Date). In the event that a proposed amendment to the Parties amend the terms of this Agreement or pursuant to Section 7.3(b), the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé Parties shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on ensure that the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content details of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this amended Agreement shall prevent the Yerbaé Board from making any disclosure are communicated to the Yerbaé Shareholders if shareholders of each Party prior to the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties resumption or convening of the Yerbaé Board postponed or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counseladjourned meetings.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after During the Matching Period, or such longer period as the Yerbaé Board has determined Company may approve (in good faith, after consultation with its outside legal counsel and financial advisors, that sole discretion) in writing for such Acquisition Proposal continues to constitute a Superior Proposal purpose: (if applicable, compared to i) the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot Parent shall have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreement, including an increase in, or modification of, Agreement and the Consideration. During the Matching Period: Arrangement; (aii) the Yerbaé Company Board shall review any offer made by Safety Shot under this Section 4.4(b) the Parent to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with outside legal and financial advisors, in order to determine whether such proposal offer would, upon acceptance, result in the Company Acquisition Proposal made by another Person previously constituting a Company Superior Proposal ceasing to be a Company Superior Proposal; and (biii) Yerbaé the Company shall negotiate in good faith with Safety Shot the Parent to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Parent to proceed with the transactions contemplated by this Agreement on such amended terms. If If, as a consequence of the Yerbaé foregoing, the Company Board determines that such Company Acquisition Proposal would cease to be a Company Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Parent and Yerbaé the Company and Safety Shot the Parent shall amend amend, or cause to be amended, this Agreement to reflect such offer made by Safety Shot, the Parent and shall take and or cause to be taken all such actions as are necessary to give effect to the foregoing. If, as a consequence of the foregoing, the Company Board determines that such Company Acquisition Proposal continues to be a Company Superior Proposal and therefore rejects the Parent’s offer to amend this Agreement and the Arrangement, the Company shall promptly so advise the Parent and may, subject to compliance with the other provisions hereof, make a Company Change of Recommendation and/or enter into a definitive agreement with respect to such Company Superior Proposal.
(cb) Each successive amendment or modification to any Company Acquisition Proposal or Company Superior Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Company Acquisition Proposal Proposal, or Company Superior Proposal, as applicable, for the purposes of this Section 4.4, 7.03 and Safety Shot Section 7.04 and the Parent shall be afforded a new Matching Period from the later of the date on which Safety Shot the Parent received the Company Superior Proposal Notice with respect to and the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not materials required to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under provided in accordance with Section 4.4(b7.03(a)(iv) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined except that the failure reference to make such disclosure would be inconsistent with five (5) Business Days in the fiduciary duties definition of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall Matching Period will be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representativesreference to three (3) Business Days).
Appears in 1 contract
Sources: Arrangement Agreement (Aditxt, Inc.)
Right to Match. (a1) If Yerbaé receives an Acquisition Proposal that at any time following the Yerbaé Board determines, in good faith after consultation with its outside financial date of this Agreement and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder ApprovalApproval at the Meeting, the Yerbaé Corporation receives an unsolicited Acquisition Proposal that constitutes a Superior Proposal, the Board may, subject may authorize the Corporation to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Acquisition Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to any existing confidentiality, standstill or similar restriction to which the Corporation is party;
(b) such Superior Proposal did not arise, directly or indirectly, as a result of a violation by the Corporation of this Article 5 in any material respect, and the Corporation has been, been and continues to be, be in compliance with its obligations under this Article 4 5 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(iic) the Person making Corporation has provided the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement Purchaser with Yerbaé;
(iiii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement agreement, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which (ii) written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Corporation has provided the Purchaser with a copy of the proposed definitive agreement for the Superior Proposal and all schedules and exhibits thereto, together with any financing documents supplied to the Corporation in connection therewith;
(e) at least ten five (105) full Business Days (the “Matching Period”) shall have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement Notice and the Arrangement date on which the Purchaser received all of the materials set forth in order for Section 5.4(1)(d) above (it being understood that the Corporation shall promptly inform the Purchaser of any amendment to the financial or other material terms of such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(bduring such period);
(vif) after the Matching Period, the Yerbaé 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 (Proposal, if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2));
(g) after the Matching Period, the Board has determined, in good faith, after consultation with its legal counsel, that failure the of the Board to make a Change in Recommendation and to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such a definitive agreement or withdrawing or modifying with respect to such Superior Proposal, the Yerbaé Board Recommendation, Yerbaé Corporation terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(4)(b) and pays Safety Shot the Corporation Termination FeeFee pursuant to Section 7.3.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Corporation may approve in writing for such purpose: (a) the Purchaser shall have the opportunityright, but not the obligation, to propose offer to amend the terms of this Agreement, including an increase in, or modification of, Agreement and the Consideration. During the Matching Period: Arrangement; (ab) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good faith in order to determine determine, in consultation with its financial and outside legal advisors, whether such proposal wouldthe Purchaser’s amended offer, upon acceptance, result in would cause the Acquisition Proposal previously constituting a Superior Proposal ceasing giving rise to the Matching Period to cease to be a Superior Proposal; and (bc) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to if the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such the Acquisition Proposal would cease giving rise to such Matching Period no longer constitutes a Superior Proposal compared to this Agreement and the Arrangement as they are proposed to be a Superior Proposalamended by the Purchaser, Yerbaé the Corporation shall promptly so advise Safety Shot the Purchaser and Yerbaé and Safety Shot the Parties shall amend this Agreement to reflect give effect to such offer made by Safety Shotamendments, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or material modification to any Acquisition Proposal that results in an increase into, or a modification of, the Consideration (or value of such Consideration) consideration to be received by Yerbaé Shareholders or other material amendment to the terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this the requirements under Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to and the new Superior Proposal from Yerbaédate on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) above.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior ProposalProposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such Acquisition Proposal shall not be considered to be in violation of this Section 5.4(4) provided the Board has re-affirmed the Board Recommendation before the end of such five (5) Business Day period). Yerbaé The Corporation shall provide Safety Shot the Purchaser and its outside legal counsel advisors with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Corporation provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchaser after a date that is less than ten (10) Business Days before the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosureMeeting, the Yerbaé Board Corporation shall not be permitted to make a Change in Recommendationeither proceed with or shall postpone or adjourn the Meeting, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 directed by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed Purchaser acting reasonably, to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.date that is not more than ten
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) If Yerbaé receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approval, the Yerbaé Board The Purchasers may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was but are not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé has delivered to Safety Shot a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iv) at least ten (10) full Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees thatrequired to, during the Matching Notice Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) in writing to amend the terms of this Agreement and the Arrangement Transaction and, if they so do, then the Board shall review any such offer in good faith faith, in order to determine whether such proposal wouldconsultation with its financial and outside legal advisors and, upon acceptance, result in if the Board:
6.5.1 determines that the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would thereby cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.:
(ci) Each successive amendment or modification to any if the Acquisition Proposal that results in an increase inwas received during the Go-Shop Period, or modification ofthen notwithstanding Section 6.1.2, for a period of five Business Days following the Consideration expiry of the Notice Period (or value of such Considerationthe “Subsequent Notice Period”) to be received by Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot Go-Shop Period shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice extended with respect to the new party that made such Superior Proposal from Yerbaé.(and for greater certainty, the activities otherwise prohibited by Sections 6.1.2(i) and (ii) shall be permitted in relation to such party) provided that if during the Subsequent Notice Period such party amends such Acquisition Proposal so that such Acquisition Proposal (as amended) constitutes a Superior Proposal, the Fund will so notify the Purchasers and the provisions of this Section 6.5.1 and 6.4 shall again apply (as many times as is necessary). For greater clarity, the Closing Date, the Outside Date, and date of the Fund Meeting as set out in Section 2.6 shall each be delayed one Business Day for each Business Day that the Notice Periods and Subsequent Notice Periods extend beyond the original Go-Shop Period, and
(dii) At if the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which was received after the Yerbaé Board has determined not end of the Go-Shop Period, it will cause the Fund Parties to be enter into an amendment to this Agreement reflecting the offer by the Purchasers to amend the terms of the Transaction, or 6.5.2 determines, following compliance with Article 6 (including Section 6.4(vi)), that the Acquisition Proposal would nonetheless remain a Superior Proposal is publicly announced or publicly disclosed or and therefore rejects the Yerbaé Board determines that a proposed amendment Purchasers’ offer to amend the terms of this Agreement and the Transaction, the Fund Parties may terminate this Agreement provided however, that the Fund must pay the Purchasers Expenses and either the Go-Shop Termination Fee or the Plan Termination Fee as set out in Section 10.2.1 prior to the termination of Arrangement as contemplated under Section 4.4(b) would result this Agreement and the entering into of a definitive agreement in an Acquisition Proposal no longer being a respect of the Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Business Acquisition Agreement (Bumble Bee Capital Corp.)
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Shareholders, the Yerbaé Board may, subject to compliance with Article 6 and Section 8.25.6, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation disclosure, use, business purpose or similar agreement restriction with Yerbaéthe Company or any of its Subsidiaries;
(iiib) Yerbaé has the Company did not breach any provision of this Article 5 in any material respect in connection with the preparation or making of such Acquisition Proposal;
(c) the Company shall have delivered to Safety Shot the Parent and the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) the Company shall have provided the Parent and the Purchaser a complete copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least ten five (105) full Business Days (the “Matching Period”) shall have elapsed from the date that is the later of the date on which Safety Shot the Parent and the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot has the Parent and the Purchaser shall have had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board has shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Parent and the Purchaser under Section 4.4(b5.4(2)); and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B6.2(1)(c)(ii) [Superior Proposal] and pays Safety Shot the Termination FeeFee pursuant to Section 5.6.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot the Parent and the Purchaser under this Section 4.4(b5.4(1)(f) above to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Parent and the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Parent and the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Parent and Yerbaé the Purchaser, and Safety Shot the Parties shall amend this Agreement to reflect such offer made by Safety Shot, 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.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Parent and the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Parent and the Purchaser received the Superior Proposal Notice and the date on which the Parent and the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to the new Superior Acquisition Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Parent and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Parent and its counsel.
(e5) If the Company provides a Superior Proposal Notice to the Parent and the Purchaser on a date that is less than ten (10) Business Days before the Meeting, the Company shall either proceed with or postpone the Meeting, as directed by and at the discretion of the Parent and the Purchaser, acting reasonably, to a date that is not more than ten (10) Business Days after the scheduled date of the Meeting, but in any event to a date that is not less than five (5) Business Days prior to the Outside Date.
(6) Nothing contained in this Agreement Section 5.4 shall prohibit the Yerbaé Board from (a) responding through a directors’ circular or otherwise as required by Applicable Securities Laws Law to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot (which response complies with the terms, conditions, covenants and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing requirements set out in this Agreement shall prevent Agreement); or (b) calling or holding a meeting of Shareholders validly and legally requisitioned by Shareholders in accordance with the Yerbaé Board from making OBCA or taking any disclosure other action with respect to an Acquisition Proposal to the Yerbaé Shareholders if the Yerbaé Board, acting extent ordered or otherwise mandated by a court of competent jurisdiction in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent accordance with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Absolute Shareholder Approval, if Absolute receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder ApprovalProposal, the Yerbaé Absolute Board may, subject or may cause Absolute to, terminate this Agreement in accordance with Article 9 to compliance with Section 8.2, enter into a definitive acquisition agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(i) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, nondisclosure, non-solicitation or similar agreement, restriction or covenant with Absolute or any of its Subsidiaries;
(ii) the Absolute Board acting in good faith and after consultation with its outside legal counsel and financial advisors, determines that the Acquisition Proposal constitutes a Superior Proposal;
(iii) Absolute has been, and continues to be, in compliance in all material respects with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives7;
(iiiv) Absolute has provided the Person making Purchaser with a notice in writing that the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Absolute Board has delivered to Safety Shot a written notice of the determination of the Yerbaé Board determined that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Absolute Board to enter into such a definitive acquisition agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivv) Absolute has provided to the Purchaser the terms of such Superior Proposal, including the financial terms of such Superior Proposal and a copy of the proposed definitive acquisition agreement relating to such Superior Proposal (including the value and financial terms that the Absolute Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal), together with all related agreements (including any financing commitments or other documents containing any material terms or conditions of such Superior Proposal);
(vi) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of all the materials referred to in Section 7.4(a)(v);
(vvii) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b7.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(viviii) after the Matching Period, the Yerbaé Absolute Board has determined shall have determined, in good faith, after consultation with its outside legal counsel and financial advisors, that (A) such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the proposed amendment to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b7.4(b)); and (B) the failure by the Absolute Board to authorize Absolute to enter into a definitive acquisition agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; and
(viiix) prior to or Absolute concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B9.2(a)(iv)(B) and pays Safety Shot Absolute has previously, or concurrently will have, paid to the Purchaser the Absolute Termination FeeFee pursuant to Section 9.3.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such or such longer period as Absolute and the Purchaser may agree for such purpose:
(i) the Purchaser shall have the opportunity, but not the obligation, to propose to amend the terms of this AgreementAgreement and the Arrangement;
(ii) Absolute shall co-operate with the Purchaser with respect thereto, including an increase inby (A) negotiating in good faith with the Purchaser to enable the Purchaser to make such adjustments to the terms and conditions of this Agreement and the Arrangement that would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the terms of this Agreement and the Arrangement proposed by the Purchaser, or modification of, the Consideration. During the Matching Period: and (aB) the Yerbaé Board shall review reviewing any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting not being a Superior Proposal ceasing compared to be a Superior Proposal; and (b) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments the proposed amendment to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot to proceed with proposed by the transactions contemplated by this Agreement on such amended terms. If Purchaser;
(iii) if the Yerbaé Absolute Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé Absolute shall promptly so advise Safety Shot the Purchaser and Yerbaé Absolute and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.; and
(civ) Each Absolute acknowledges and agrees that each successive amendment or modification to of any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.4 and Safety Shot the Purchaser shall be afforded a new full five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice with respect to for the new Superior Proposal from Yerbaéand the date on which the Purchaser received all of the materials referred to in Section 7.4(a)(v) with respect to such new Superior Proposal.
(dc) At the written request of Safety Shot, the Yerbaé The Absolute Board shall promptly reaffirm the Yerbaé Absolute Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Absolute Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b7.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé Absolute shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of any such disclosure press release and shall give reasonable consideration to consider in good faith any comments made amendments requested by Safety Shot the Purchaser and its outside legal counsel. Further.
(d) If Absolute provides the Purchaser with a Superior Proposal Notice on a date that is less than ten Business Days prior to the Absolute Meeting, nothing Absolute shall, if requested by the Purchaser, adjourn the Absolute Meeting to a date that is not more than ten Business Days after the date of such notice, provided, however, that the Absolute Meeting shall not be adjourned or postponed to a date later than the seventh (7) Business Day prior to the Outside Date.
(e) Nothing contained in this Agreement shall prevent (i) prohibit the Yerbaé Absolute Board from making any disclosure complying with Section 2.17 of National Instrument 62-104 - Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the Yerbaé provision of a directors’ circular in respect of an Acquisition Proposal; or (ii) prohibit Absolute or the Absolute Board from calling and/or holding a meeting of Shareholders if the Yerbaé Board, acting requisitioned by Shareholders in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent accordance with the fiduciary duties of BCBCA or taking any other action to the Yerbaé Board extent ordered or such disclosure is otherwise required under Applicable Lawmandated by a Governmental Authority; provided, however, in each case that, notwithstanding that the Yerbaé Absolute Board shall be permitted to make such disclosure, the Yerbaé Absolute Board shall not be permitted to make a an Absolute Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder ApprovalProposal, the Yerbaé Board may, subject to compliance with Section 8.2or may cause the Company to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Company or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes it has received a Superior Proposal and of the intention of the Yerbaé Board to approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(d) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vie) after the Matching Period, the Yerbaé 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 Safety Shot the Purchaser under Section 4.4(b5.4(2));
(f) the approval of the Arrangement Resolution by the Company Shareholders has not been obtained; and
(viig) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Company Termination FeeAmount pursuant to Section 8.2(2).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with outside legal 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) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the Yerbaé foregoing the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé5.4.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) If Yerbaé the Company receives an Company Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Company Superior Proposal prior to obtaining the Yerbaé Shareholder Required Approval, the Yerbaé Company Board maymay make a Company Change in Recommendation and approve, subject to compliance with Section 8.2, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Company Superior Proposal, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Company Superior Proposal was not restricted from making such Acquisition Company Superior Proposal pursuant to an existing confidentiality, standstillstandstill use, non-solicitation business purpose or similar agreement with Yerbaérestriction;
(iiib) Yerbaé the Company Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Company of this Article 5;
(c) the Company has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Company Acquisition Proposal constitutes a Company Superior Proposal and of the intention of the Yerbaé Company Board to make a Company Change in Recommendation and/or enter into such definitive agreement promptly following the making of such determination, together with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which a written notice specifies from the material Company Board regarding the value and financial terms and conditions of 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 and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Company Superior Proposal Notice”);
(ivd) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Company Superior Proposal and all supporting materials (including any financing documents, subject to customary confidentiality provisions with respect to fee letters or similar information) provided to the Company in connection therewith);
(e) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Company Superior Proposal NoticeNotice from the Company and the date on which the Purchaser received a copy of the proposed definitive agreement for the Company Superior Proposal from the Company;
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to the Company to amend this Agreement and the Arrangement in order for such Company Acquisition Proposal to cease to be a Company Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);Proposal; and
(vig) after the Matching Period, the Yerbaé Company Board has determined determined, in good faith, after consultation with its the Company’s financial advisors and outside legal counsel and financial advisorscounsel, that such Company Acquisition Proposal continues to constitute remains a Company Superior Proposal (if applicable, as compared to the terms of the Arrangement as proposed to be amended by Safety Shot under Section 4.4(b))the Purchaser and that it is necessary for the Company Board to cause the Company to enter into a definitive agreement with respect to such Company Superior Proposal in order to satisfy their fiduciary duties to the Company;
(h) 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 and Lock-Up 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 the termination of this Agreement or pursuant to the Voting Support and Lock-Up Agreements; and
(viii) prior to or the Company concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee7.2(1)(c)(iii).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Company Board shall review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé the Company shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. The Company agrees that, subject to the Company’s disclosure obligations under applicable Securities Laws, the fact of the making of, and each of the terms of, any such proposed amendments shall be kept strictly confidential and shall not be disclosed to any Person (including without limitation, the Person having made the Company Superior Proposal), other than the Company’s Representatives, without the Purchaser’s prior written consent. If the Yerbaé Company Board determines that such Company Acquisition Proposal would cease to be a Company Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Company Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Company Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Company Superior Proposal Notice with respect to and a copy of the proposed definitive agreement for the new Company Superior Proposal from Yerbaéthe Company.
(d4) At the written request of Safety Shot, the Yerbaé The Company Board shall promptly reaffirm the Yerbaé Company Board Recommendation by press release after any Company Acquisition Proposal which the Yerbaé Board has is not determined not to be a Company Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Company Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Company Acquisition Proposal no longer being a Company Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchaser and its counsel.
(e5) If the Company provides a Company Superior Proposal Notice to the Purchaser after a date that is less than ten (10) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than ten (10) Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five (5) Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing while this Agreement remains in force.
(7) Nothing contained in this Agreement shall prevent the Yerbaé Company Board from (i) complying with Section 2.17 of National 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 a Company Acquisition Proposal that is not a Company Superior Proposal, or (ii) making any public disclosure to the Yerbaé Company Shareholders if the Yerbaé Company Board, acting in good faith and upon the advice of after consultation with its outside legal and financial advisors, shall have first determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; providedCompany Board, provided however, in each case that, notwithstanding that the Yerbaé Company Board shall be permitted to make such disclosure, the Yerbaé Company Board shall not be permitted to make a Company Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel5.4(1).
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) 5.8.1 If Yerbaé Imvescor receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Amalgamation Resolution by the Imvescor Shareholders, the Yerbaé Board (or any committee thereof) may, subject to compliance with Section 8.2Article 7, make a Change in Recommendation and enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure or similar restriction with Imvescor or any of its Subsidiaries;
(b) Imvescor has been, and continues to be, in compliance with its obligations under this Article 4 in all respects Sections 5.5, 5.6, 5.7 and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5.8;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Imvescor has delivered to Safety Shot MTY a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions as well as a copy of any draft agreement in respect thereof that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date on which Safety Shot MTY received the Superior Proposal Notice;
(ve) during any Matching Period, Safety Shot MTY has had the opportunity (but not the obligation), in accordance with Section 4.4(b)5.8.2, to offer to amend this Agreement and the Arrangement Amalgamation Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);Proposal; and
(vif) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of this Agreement and the Arrangement Amalgamation as proposed to be amended by Safety Shot MTY under Section 4.4(b5.8.2)); and
(vii) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé terminates this Agreement pursuant to Section 8.1(a)(vii)(B) and pays Safety Shot the Termination Fee.
(b) Y▇▇▇▇▇ acknowledges and agrees that, during the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé shall negotiate in good faith with Safety Shot to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé shall promptly so advise Safety Shot and Yerbaé and Safety Shot shall amend this Agreement to reflect such offer made by Safety Shot, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) 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 Yerbaé Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, and Safety Shot shall be afforded a new Matching Period from the later of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaé.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé Hut receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal and that was not solicited in breach of Section 7.1 and that was made after the date of this Agreement and prior to obtaining the Yerbaé Shareholder Approvalapproval of the Hut Resolutions by the Hut Shareholders, the Yerbaé Board Hut may, subject to compliance with Section 8.29.1 and Section 9.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(b) Hut has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives7;
(iic) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Yerbaé;
(iii) Yerbaé Hut has delivered to Safety Shot USBTC a written notice of the determination of the Yerbaé Hut Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Hut Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board RecommendationProposal, which written notice specifies shall include the material value and financial terms and conditions of that the Hut Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivd) Hut has provided USBTC a copy of the proposed definitive agreement for the Superior Proposal and all other material agreements related thereto, including any financing documents supplied to Hut in connection therewith;
(e) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot USBTC received the Superior Proposal NoticeNotice and the date on which USBTC received all of the materials set forth in Section 7.4(1)(d);
(vf) during any Matching Period, Safety Shot USBTC has had the opportunity (but not the obligation)opportunity, in accordance with Section 4.4(b7.4(2), to offer to amend this Agreement and the Arrangement Transaction in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiatedProposal, and caused its Representatives to negotiateincluding by adjusting the Hut Exchange Ratio or the USBTC Exchange Ratio, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)as applicable;
(vig) after the Matching Period, the Yerbaé Hut 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot USBTC under Section 4.4(b7.4(2))) and that the failure by the Hut Board to take such action would be inconsistent with its fiduciary duties under applicable Law; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendationagreement, Yerbaé Hut terminates this Agreement pursuant to Section 8.1(a)(vii)(B) 9.1 and pays Safety Shot the Termination FeeAmount pursuant to Section 9.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Periodsuch longer period as Hut may (in its sole discretion) approve in writing for such purpose: (a) the Yerbaé Hut Board shall review any offer made by Safety Shot USBTC under this Section 4.4(b7.4(1)(f) to amend the terms of this Agreement and the Arrangement Transaction in good 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) Yerbaé Hut shall negotiate negotiate, and cause its Representatives to negotiate, in good faith with Safety Shot to make USBTC such amendments to the terms of this Agreement or and the Plan of Arrangement Transaction as would result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal and enable Safety Shot USBTC to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Hut Board determines that such Acquisition Proposal would cease to be a Superior ProposalProposal based on any such mutually agreed amendments to this Agreement with USBTC, Yerbaé Hut shall promptly so advise Safety Shot USBTC, and Yerbaé and Safety Shot the Parties shall thereupon amend this Agreement to reflect such offer made by Safety ShotUSBTC, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Consideration) consideration), directly or indirectly, to be received by Yerbaé Hut or the Hut Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 7.4 and Safety Shot USBTC shall be afforded a new five (5) Business Day Matching Period from the later of the date on which Safety Shot USBTC received the Superior Proposal Notice and the date on which USBTC received all of the materials set forth in Section 7.4(1)(d) with respect to the new Superior Proposal from Yerbaé.the Company
(d4) At the written request of Safety Shot, the Yerbaé The Hut Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after (x) any Acquisition Proposal which the Yerbaé Board has is not determined not to be a Superior Proposal is publicly announced or (y) if an Acquisition Proposal that is publicly disclosed announced or publicly known was determined to be a Superior Proposal, the Yerbaé Hut Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under by Section 4.4(b7.4(2) would result in an such Acquisition Proposal no longer being a Superior Proposal. Yerbaé Hut shall provide Safety Shot USBTC and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot USBTC and its counsel.
(e5) Nothing If Hut provides a Superior Proposal Notice to USBTC on a date that is less than ten (10) Business Days before the Hut Meeting, USBTC will be entitled to require Hut to adjourn or postpone such Hut Meeting in accordance with the terms of this Agreement shall prohibit to a date (x) specified by USBTC that is not more than ten (10) Business Days after the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Proposal scheduled date of the Hut Meeting, provided that Yerbaé in no event shall provide Safety Shot and its counsel with such adjourned or postponed meeting be held on a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure date that is less than five Business Days prior to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board Outside Date or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a(y) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 mutually agreed by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesParties.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Corporation receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Required Shareholder Approval, the Yerbaé Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior ProposalProposal and make a Change in Recommendation, if and only if:
(i) Yerbaé has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives;
(iia) the Person making the Acquisition Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, non-solicitation or similar agreement agreement, restriction or covenant contained in any Contract entered into with Yerbaéthe Corporation or any of its Subsidiaries;
(iiib) Yerbaé the Corporation has been, and continues to be in compliance in all material respects with its obligations under this Article 5;
(c) the Corporation has delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify and to make a Change in Recommendation (the Yerbaé Board Recommendation, which written notice specifies "Superior Proposal Notice");
(d) the Corporation has provided the Purchaser a copy of the definitive agreement for the Superior Proposal and all supporting materials containing material terms and conditions of such the Superior Proposal any financing documents supplied to the Corporation in connection therewith and provides the most current version of cash value that the proposed agreement Board has, after consultation with outside financial advisors, determined should be ascribed to any non-cash consideration offered under which such the Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”)Proposal;
(ive) at least ten five (105) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received all of the materials referred to in Section 5.4(1)(d);
(vf) during any Matching Period, Safety Shot the Purchaser has had the opportunity (but not the obligation), in accordance with Section 4.4(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b)Proposal;
(vig) after the Matching Period, the Yerbaé Board (i) has determined in good faith, after consultation with its the Corporation's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2))) and (ii) determined in good faith, after consultation with the Corporation's outside legal counsel that that the failure by the Board to cause the Corporation to enter into a definitive agreement and make a Change in Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board and making a Change in Recommendation, Yerbaé the Corporation terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) [Superior Proposal] and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCorporation may approve in its sole discretion in writing for such purpose: (a) the Yerbaé Purchaser shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal and the Board shall shall, in consultation with the Corporation's outside legal counsel and financial advisers, review any offer made by Safety Shot the Purchaser under this Section 4.4(b5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good 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) Yerbaé if it would no longer constitute a Superior Proposal, the Corporation shall, and shall cause its Representatives to, negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Corporation shall promptly so advise Safety Shot the Purchaser and Yerbaé the Corporation and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shotthe Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) 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) consideration to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot the Purchaser shall be afforded a new full five (5) Business Day Matching Period from the later of the date on which Safety Shot the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials referred to in Section 5.4(1)(d) with respect to the each new Superior Proposal from Yerbaéthe Corporation.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Corporation shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all give reasonable amendments consideration to such press release as requested any comments provided by Safety Shot the Purchaser and its outside legal counsel.
(e5) If the Corporation provides a Superior Proposal Notice to the Purchaser after a date that is less than ten (10) Business Days before the Meeting, the Corporation shall be entitled to and shall upon request from the Purchaser postpone the Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the Meeting, but in any event to a date that is less than five (5) Business Days prior to the Outside Date.
(6) Nothing contained in this Agreement Article 5 shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise from:
(a) making disclosure to Shareholders as required by Applicable applicable Law, including complying with section 2.17 of National 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 Proposal, provided that Yerbaé the Corporation shall provide Safety Shot the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give reasonable consideration to any comments made provided by Safety Shot the Purchaser and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent counsel; or
(b) calling or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the fiduciary duties CBCA or taking any other action with respect to an Acquisition Proposal to the extent ordered or otherwise mandated by a court of the Yerbaé Board or such disclosure is otherwise required under Applicable competent jurisdiction in accordance with Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a) If Yerbaé the Company receives an Acquisition Proposal that the Yerbaé Board determines, determines in good faith faith, after consultation with its financial advisors and its outside financial and legal advisorscounsel, constitutes a Superior Proposal, the Board may terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal prior to obtaining completion of the Yerbaé Shareholder ApprovalOffer and recommend or approve an Acquisition Proposal, including in each case, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the Yerbaé Board may, subject to compliance with Section 8.2, enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposaldate hereof, if and only if:
(i) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 Section 6.1 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representativesmaterial respects;
(ii) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Company or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot the Offeror a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to accept, approve, recommend or enter into such definitive an agreement with in respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board Recommendation, which written notice specifies the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(iii) the Company or its Representatives have provided to the Offeror a copy of any proposed definitive agreement for the Superior Proposal;
(iv) at least ten (10) full five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Offeror received the Superior Proposal NoticeNotice and the date on which the Offeror received a copy of the definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vi) after the Matching Period, the Yerbaé 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 Offer as proposed to be amended by Safety Shot the Offeror under Section 4.4(b6.4(b)); and
(viivi) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B8.3(a)(i) and pays Safety Shot the Company Termination FeeAmount pursuant to Section 8.3(c).
(b) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Offeror to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with outside legal 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) Yerbaé if the Board determines that such Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with Safety Shot the Offeror to make such amendments to the terms of this Agreement or the Plan of Arrangement as would enable Safety Shot the Offeror to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the Yerbaé foregoing the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Offeror and Yerbaé the Company and Safety Shot the Offeror shall amend this Agreement to reflect such offer made by Safety Shotthe Offeror, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 6.4. Each successive amendment to an Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 6.4 and Safety Shot Offeror shall be afforded a new Matching Period from the later in respect of the date on which Safety Shot received the Superior Proposal Notice with respect to the new Superior Proposal from Yerbaéeach such Acquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e) Nothing in this Agreement shall prohibit the Yerbaé Board from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure to the Yerbaé Shareholders if the Yerbaé Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board shall not be permitted to make a Change in Recommendation, of Recommendation other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel6.4(a).
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Sources: Support Agreement
Right to Match. (a1) If Yerbaé If, prior to the Arrangement Resolution being approved by the Common Shareholders in accordance with the Interim Order, the Company receives an Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisorsfaith, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder ApprovalProposal, the Yerbaé Board and any board (or equivalent body) of a Subsidiary of a Company may, subject to compliance with Article 7 and Section 8.2, authorize the Company and/or such Subsidiary (as applicable) to enter into a definitive agreement with respect to such Superior Proposal or make a Change in Recommendation with respect to such Superior ProposalRecommendation, if and only if:
(ia) Yerbaé has been, and continues to be, in compliance with such Superior Proposal did not result from a breach by the Company of its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iib) the Person making the Acquisition such Superior Proposal was not restricted from making such Acquisition Superior Proposal pursuant to an existing confidentiality, standstill, non-solicitation standstill or similar agreement with Yerbaérestriction;
(iiic) Yerbaé the Company has delivered to Safety Shot the Purchasers a written notice of the determination of the Yerbaé Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Yerbaé Board to enter into such definitive agreement with respect to such Superior Proposal and/or withdraw or modify the Yerbaé Board make a Change in Recommendation, which together with a written notice specifies from the material Board regarding the value and financial terms and conditions of that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Acquisition Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the a “Superior Proposal Notice”);
(ivd) the Company has provided the Purchasers with a copy of the proposed definitive agreement for the Superior Proposal and all other agreements which are ancillary to such definitive agreement and all supporting materials, including financing commitment documents supplied to the Company in connection therewith;
(e) at least ten five (105) full Business Days have elapsed from the date that is the later of the date on which the Purchasers received the Superior Proposal Notice and the date on which the Purchasers received all of the materials set forth in Section 5.4(1)(d) (the “Matching Period”) have elapsed from the date on which Safety Shot received the Superior Proposal Notice;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vif) after the Matching Period, the Yerbaé 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 (if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchasers under Section 4.4(b5.4(2)); and
(viig) prior to or concurrently with entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeFee pursuant to Section 8.2.
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot or such longer period as the Company may approve in writing for such purpose: (i) the Purchasers shall have the opportunity, opportunity (but not the obligation), to propose offer to amend this Agreement and the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching Period: Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (aii) the Yerbaé Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchasers to amend the terms of this Agreement and the Arrangement Arrangement, in good faith in order and in consultation with outside legal and financial advisors, to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and (biii) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchasers to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchasers to proceed with the transactions contemplated by this Agreement on such amended terms. If the Yerbaé Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchasers and Yerbaé the Company and Safety Shot the Purchasers shall amend this Agreement to reflect such offer made by Safety Shotthe Purchasers, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Common Shareholders or other material terms or conditions thereof of such Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 4.4, 5.4 and Safety Shot the Purchasers shall be afforded a new Matching Period from the later of the date on which Safety Shot the Purchasers received the Superior Proposal Notice and the date on which the Purchasers received all of the materials set forth in Section 5.4(1)(d) with respect to the such new Superior Proposal from YerbaéProposal; provided that, notwithstanding Section 5.4(1)(e) above, the duration of such Matching Period shall be three (3) Business Days rather than five (5) Business Days.
(d4) At the written request of Safety Shot, the Yerbaé The Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which that the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé The Company shall provide Safety Shot the Purchasers and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot the Purchasers and its their counsel.
(e5) Nothing in this Agreement shall prohibit If the Yerbaé Board from responding through Company provides a directors’ circular or otherwise as required by Applicable Securities Laws to an Acquisition Superior Proposal provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel. Further, nothing in this Agreement shall prevent the Yerbaé Board from making any disclosure Notice to the Yerbaé Shareholders if Purchasers on a date that is less than ten (10) Business Days before the Yerbaé BoardCompany Meetings, acting in good faith the Company shall be entitled to, and upon the advice of its outside legal and financial advisorsPurchasers shall be entitled to require the Company to, shall have determined adjourn or postpone the Company Meetings to a date that is not more than ten (10) Business Days after the failure to make such disclosure would be inconsistent with the fiduciary duties scheduled date of the Yerbaé Board or such disclosure is otherwise required under Applicable LawCompany Meetings; provided, however, that, notwithstanding that the Yerbaé Board shall be permitted to make such disclosure, the Yerbaé Board Company Meetings shall not be permitted adjourned or postponed to make a Change in Recommendation, other date later than as permitted by Section 4.4(afive (5) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review Business Days before the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselOutside Date.
(f) Any violation of the restrictions set forth in this Section 4.4 by the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective Representatives.
Appears in 1 contract
Right to Match. (a1) If Yerbaé the Company receives an a Company Acquisition Proposal that the Yerbaé Board determines, in good faith after consultation with its outside financial and legal advisors, constitutes a Superior Proposal prior to obtaining the Yerbaé Shareholder Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Yerbaé Company Board may, subject to compliance with Section 8.2or may cause the Company to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement or make a Change in Recommendation with respect to such Superior Proposal, if and only if:
(ia) Yerbaé the Company has been, and continues to be, in compliance with its obligations under this Article 4 in all respects and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Yerbaé or any of the Yerbaé Subsidiaries or any of their respective Representatives5;
(iib) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation Company or similar agreement with Yerbaé;
(iii) Yerbaé has its Representatives have delivered to Safety Shot the Purchaser a written notice of the determination of the Yerbaé Company Board that such Acquisition Proposal constitutes it has received a Superior Proposal and of the intention of the Yerbaé Board to approve, recommend or enter into such a definitive agreement with respect to such Superior Proposal and/or withdraw or modify Proposal, including a notice as to the Yerbaé value in financial terms that the Company Board Recommendationhas, which written notice specifies in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the material terms and conditions of such Superior Proposal and provides the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated (the “Superior Proposal Notice”);
(ivc) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(d) at least ten five (105) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Safety Shot the Purchaser received the Superior Proposal NoticeNotice and the date on which the Purchaser received a copy of the definitive agreement for the Superior Proposal;
(v) during any Matching Period, Safety Shot has had the opportunity (but not the obligation), in accordance with Section 4.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal and Yerbaé has negotiated, and caused its Representatives to negotiate, in good faith with Safety Shot to the extent Safety Shot wishes to negotiate any revisions to the terms of this Agreement that Safety Shot proposes pursuant to Section 4.4(b);
(vie) after the Matching Period, the Yerbaé Company Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Company Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by Safety Shot the Purchaser under Section 4.4(b5.4(2)); and
(viif) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement or withdrawing or modifying the Yerbaé Board Recommendation, Yerbaé Company terminates this Agreement pursuant to Section 8.1(a)(vii)(B7.2(1)(c)(ii) and pays Safety Shot the Termination FeeAmount pursuant to Section 8.2(2).
(b2) Y▇▇▇▇▇ acknowledges and agrees that, during During the Matching Period, Safety Shot shall have or such longer period as the opportunity, but not the obligation, to propose to amend the terms of this Agreement, including an increase in, or modification of, the Consideration. During the Matching PeriodCompany may approve in writing for such purpose: (a) the Yerbaé Company Board shall review any offer made by Safety Shot under this Section 4.4(b) the Purchaser to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with outside legal and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Company Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) Yerbaé the Company shall negotiate in good faith with Safety Shot the Purchaser to make such amendments to the terms of this Agreement or and the Plan of Arrangement as would enable Safety Shot the Purchaser and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the Yerbaé foregoing the Company Board determines that such Company Acquisition Proposal would cease to be a Superior Proposal, Yerbaé the Company shall promptly so advise Safety Shot the Purchaser and Yerbaé the Company and Safety Shot the Purchaser shall amend this Agreement to reflect such offer made by Safety Shot, the Purchaser and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) Each successive amendment or modification to any Company Acquisition Proposal that results in an increase in, or modification of, the Consideration consideration (or value of such Considerationconsideration) to be received by Yerbaé the Company Shareholders or other material terms or conditions thereof shall constitute a new Company Acquisition Proposal for the purposes of this Section 4.45.4, and Safety Shot shall be afforded a new provided that the Matching Period from in respect of such new Acquisition Proposal shall extend only until the later of the date on which Safety Shot end of the initial five (5) Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice with respect to for the new Superior Proposal from YerbaéCompany Acquisition Proposal.
(d) At the written request of Safety Shot, the Yerbaé Board shall promptly reaffirm the Yerbaé Board Recommendation by press release after any Acquisition Proposal which the Yerbaé Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Yerbaé Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 4.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Yerbaé shall provide Safety Shot and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Safety Shot and its counsel.
(e4) Nothing in this Agreement shall prohibit the Yerbaé Company Board from responding through a directors’ circular or otherwise as required by Applicable applicable Securities Laws to an a Company Acquisition Proposal provided that Yerbaé shall provide Safety Shot and its counsel with it determines is not a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counselSuperior Proposal. Further, nothing in this Agreement shall prevent the Yerbaé Company Board from making any disclosure to the Yerbaé Company Shareholders if the Yerbaé Company Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Yerbaé Company Board or such disclosure is otherwise required under Applicable Law; provided, however, that, notwithstanding the Yerbaé Company Board shall be permitted to make such disclosure, the Yerbaé Company Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 4.4(a) and provided that Yerbaé shall provide Safety Shot and its counsel with a reasonable opportunity to review the form and content of such disclosure and shall give reasonable consideration to any comments made by Safety Shot and its counsel5.4(1).
(f5) Any violation If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five (5) Business Days before the Company Meeting, the Company shall be entitled to, and shall upon request from the Purchaser, postpone the Company Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the restrictions set forth Company Meeting (and, in this Section 4.4 by any event, prior to the Yerbaé Subsidiaries or Yerbaé’s or the Yerbaé Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 4.4 by Y▇▇▇▇▇. Furthermore, Yerbaé shall be responsible for any breach of this Section 4.4 by the Yerbaé Subsidiaries and its and their respective RepresentativesOutside Date).
Appears in 1 contract