Right to Match. (a) Subject to Section 4.6(b), E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless: (i) E&C has complied with its obligations under Section 4.5 and the other provisions of this Article 4 and has provided Parent with a copy of all material documentation relating to the Superior Proposal; and (ii) a period (the “Response Period”) of five Business Days shall have elapsed from the date on which Parent received both a copy of the Superior Proposal together with written notice from E&C that the Board of Directors 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. (b) During the Response Period, Parent will have the right, but not the obligation, to offer to amend the terms of the 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 to be received by the Securityholders to determine whether the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as 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 Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 and Parent shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 2 contracts
Sources: Arrangement Agreement (Elephant & Castle Group Inc), Arrangement Agreement (Sexton Roger)
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders the Board may, or may cause the Company to, subject to compliance with Section 8.2(3), enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) Subject the Company has been, and continues to Section 4.6(b)be, E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:
(i) E&C has complied compliance with its obligations under Section 4.5 5.1, Section 5.2 and Section 5.3 in all material respects;
(b) the other provisions Company or its Representatives have delivered to the Purchaser a written notice of this Article 4 the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and has of the intention to enter into a definitive agreement with respect to such Superior Proposal (the “Superior Proposal Notice”);
(c) the Company or its Representatives have provided Parent with to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all ancillary documentation (and supporting materials) containing material documentation relating 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; and;
(iid) a period at least five (5) Business Days (the “Response Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which Parent the Purchaser received both the Superior Proposal Notice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal together with written notice from E&C 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 of Directors determinedhas, subject only after consultation with outside financial advisors, determined should be ascribed to compliance with this Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with any non-cash consideration offered under the Superior Proposal.;
(be) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(f) after the Matching Period, the Board has determined in good faith (i) after consultation with its outside legal counsel and financial advisor, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement. The Arrangement as proposed to be amended by the Purchaser under Section 5.4(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
(g) prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Termination Fee pursuant to Section 8.2(3).
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Board of Directors will shall review any such proposal offer made by Parent the Purchaser under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders Arrangement in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which Parent is responding would be a Superior Proposal when assessed against Proposal; and (b) the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines that such Acquisition Proposal would cease to be a Superior Proposal, the Board of Directors will Company shall promptly reaffirm its recommendation of so advise the Arrangement Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement are necessary to proceed with the Superior Proposal. Notwithstanding give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(c3) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders or amends or modifies other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 and Parent shall be afforded a new Response 5.4, provided that the Matching Period in respect of each such new Acquisition Proposal shall be three (3) Business Days from the date that is the later of the date on which the Purchaser receives the new Superior Proposal Notice 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.
(4) The Board will promptly reaffirm the Board Recommendation by press release after: (a) the Board determines any Acquisition Proposal that has been publicly announced or publicly disclosed is not a Superior Proposal; or (b) the Board determines that a proposed amendment to the terms of the Arrangement would result in any Acquisition Proposal which has been publicly announced or made not being a Superior Proposal, and the Purchaser has so amended the terms of the Arrangement. The Purchaser and its legal counsel will be given a reasonable opportunity to review and comment on the form and content of any such press release and the Company shall give reasonable consideration to any comments made by the Purchaser and its legal counsel.
(5) 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 Article 5 by the Subsidiary or a Representative of the Company will be deemed to be a breach of this Article 5 by the 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 Issuer Bids and similar 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. (a) Subject to Section 4.6(b6.2(b), E&C covenants Augusta agrees that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior an Acquisition Proposal (other than a confidentiality agreement permitted by Section 4.5(d6.1(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) E&C the Augusta Board of Directors has determined that the Acquisition Proposal constitutes a Superior Proposal;
(ii) Augusta has complied with its obligations under Section 4.5 and the all other provisions of this Article 4 6 and has provided Parent the Offeror with a copy of all material documentation the Acquisition Proposal (including, if applicable, a copy of any proposed agreement relating to the Superior such Acquisition Proposal; and);
(iiiii) a period (the “Response Period”) of five Business Days (5) business days shall have elapsed from the later of (A) the date on which Parent the Offeror received both a copy of the Superior Proposal together with written notice from E&C the Augusta Board of Directors that the Augusta Board of Directors determined, subject only to compliance with this Section 4.66.2, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal, and (B) the date the Offeror received a copy of such Acquisition Proposal;
(iv) after the Response Period, the Augusta Board of Directors has determined in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal continues to constitute a Superior Proposal; and
(v) Augusta concurrently terminates this Agreement pursuant to Section 8.1(i) and has paid to the Offeror the Termination Payment pursuant to Section 6.3(a)(ii).
(b) During the Response Period, Parent the Offeror will have the right, but not the obligation, to offer to amend the terms of this Agreement and the ArrangementOffer. The Augusta Board of Directors will review any such proposal by Parent the Offeror to amend the terms of the ArrangementOffer in order to determine, including an increase in, or modification of, in good faith in the consideration to be received by the Securityholders to determine exercise of its fiduciary duties whether the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against the Arrangement Offer as it is proposed by Parent the Offeror to be amendedamended would, upon acceptance by Augusta, result in the Acquisition Proposal ceasing to be a Superior Proposal compared to the proposed amended Offer. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Augusta Board of Directors does so determine, E&C may approve, recommend, accept or the Augusta Board of Directors will cause Augusta to promptly enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant amendment to this Agreement, including with respect to Agreement reflecting the calling 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 continueamended 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Augusta Shareholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 6.2 and Parent the Offeror shall be afforded a new Response Period in respect of each such Acquisition Proposal.
(e) Nothing in this Agreement shall prevent the Augusta Board of Directors from responding through a directors’ circular or otherwise as required by applicable Laws or complying with Rule 14d-9 and Rule 14e-2 promulgated under the U.S. Exchange Act, in respect of an Acquisition Proposal that it determines is not a Superior Proposal. The Offeror 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 Augusta shall give reasonable consideration to all comments made by the Offeror and its counsel.
Appears in 2 contracts
Sources: Support Agreement (HudBay Minerals Inc.), Support Agreement (Augusta Resource CORP)
Right to Match. (a) 5.7.1. Subject to Section 4.6(b)5.7.2, E&C WSI covenants that it will not accept, approve, recommend (or change or withdraw its recommendation relating to the Agreement, except in the circumstances set forth in the last sentence of Section 5.6.1) or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)5.6.4) unless:
(ia) E&C an Acquisition Proposal has been made that the board of directors of WSI determines in good faith after consultation with its financial advisors and outside legal counsel constitutes a Superior Proposal;
(b) WSI has complied with its obligations under Section 4.5 5.6 and the other provisions of this Article 4 Section 5.7 and has provided Parent IESI-BFC with a copy of all material documentation relating to the Superior Proposal (together with a written notice from the board of directors of WSI regarding the value and financial terms that the board of directors of WSI has in consultation with its financial advisors determined should be ascribed to any non-cash consideration offered under the said Superior Proposal; and);
(iic) a period (the “Response Period”) of five three (3) Business Days shall have elapsed from the date on which Parent IESI-BFC received both a copy of the Superior Proposal together with written notice from E&C the board of directors of WSI that the Board board of Directors directors of WSI determined, subject only to compliance with this Section 4.65.7, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal;
(d) if IESI-BFC has proposed to amend the terms of this Agreement in accordance with Section 5.7.2, the board of directors of WSI shall have determined that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account the amendments; and
(e) WSI shall have terminated this Agreement pursuant to Section 7.4.1(e) and shall have paid the fees prescribed by Section 5.8.
(b) 5.7.2. During the Response Period, Parent IESI-BFC will have the right, but not the obligation, to offer to amend the terms of the Arrangementthis Agreement. The Board board of Directors directors of WSI will review any such proposal by Parent IESI-BFC to amend the terms of the ArrangementAgreement, including an increase in, or modification of, the consideration to be received by the Securityholders holders of WSI Common Stock, to determine whether the Acquisition Proposal to which Parent IESI-BFC is responding would be a Superior Proposal when assessed against the Arrangement Agreement as it is proposed by Parent IESI-BFC to be amended. If the Board board of Directors directors of WSI does not so determine, the Board board of Directors directors of WSI will promptly reaffirm its recommendation of the Arrangement as amendedtransactions contemplated under this Agreement. If the Board board of Directors directors of WSI does so determine, E&C WSI may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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) 5.7.3. Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders holders of WSI Common Stock shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.7 and Parent IESI-BFC shall be afforded a new Response Period in respect of each such Acquisition Proposal.
5.7.4. If the Response Period would not terminate before the date fixed for the WSI Stockholders Meeting, WSI shall adjourn the WSI Stockholders Meeting to a date that is at least one (1) Business Day after the expiration of the Response Period.
Appears in 2 contracts
Sources: Merger Agreement (Waste Services, Inc.), Merger Agreement (IESI-BFC LTD)
Right to Match. (a) Subject to Section 4.6(b4.2(b), E&C covenants COS agrees that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior an Acquisition Proposal (other than a confidentiality agreement permitted by Section 4.5(d4.1(d)) or withdraw, modify or qualify its approval or recommendation of the Offer and recommend or approve the Acquisition Proposal, unless:
(i) E&C the board of directors of COS determines that the Acquisition Proposal constitutes a Superior Proposal;
(ii) COS has complied with its obligations under Section 4.5 and the all other provisions of this Article 4 and has provided Parent Suncor with a copy of all material documentation relating to the Superior Acquisition Proposal; and;
(iiiii) a period (the “Response Period”) of five Business Days shall have elapsed from the later of (A) the date on which Parent Suncor received both a copy of the Superior Proposal together with written notice from E&C the board of directors of COS that the Board board of Directors directors of COS determined, subject only to compliance with this Section 4.64.2, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal, and (B) the date Suncor received a copy of such Acquisition Proposal;
(iv) after the Response Period and the provisions of Section 4.2(b) in respect thereof, the board of directors of COS determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal continues to constitute a Superior Proposal; and
(v) COS concurrently terminates this Agreement pursuant to Section 5.1(g) and has paid or concurrently pays to Suncor the Termination Payment pursuant to Section 4.3.
(b) During the Response Period, Parent Suncor will have the right, but not the obligation, to offer to amend in writing the terms of this Agreement and the ArrangementOffer. The Board of Directors COS agrees that, if requested by Suncor, it will review any such proposal by Parent negotiate with Suncor in good faith to amend the terms of this Agreement and the ArrangementOffer. The board of directors of COS will review any such written amendment to determine, including an increase inin good faith in the exercise of its fiduciary duties, or modification ofand upon the advice of its financial advisors, the consideration to be received by the Securityholders to determine whether the Acquisition Proposal to which Parent Suncor is responding would be a Superior Proposal when assessed against the Arrangement Offer as it is proposed by Parent Suncor to be amended. If the Board board of Directors directors of COS does not so determine, the Board board of Directors directors of COS will promptly cause COS to enter into an amendment to this Agreement reflecting the proposal by Suncor to amend the terms of the Offer and upon the execution by the Parties of such amendment will reaffirm its recommendation of the Arrangement Offer, as so amended. If the Board board of Directors directors of COS does so determine, E&C COS may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect subject to the calling terms of and holding of the Meeting and, if the requisite approvals of E&C Securityholders are obtained pursuant to compliance with Section 2.3 hereof, the application for the Final Order, shall continue4.2(a)(v).
(c) Each successive amendment to any Acquisition Proposal (including any Superior Proposal) that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders COS Shareholders shall constitute a new Acquisition Proposal (or a new Superior Proposal, where applicable) for the purposes of this Section 4.6 4.2 and Parent Suncor shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 2 contracts
Sources: Support Agreement (Suncor Energy Inc), Support Agreement
Right to Match. (a) Subject to Section 4.6(b), E&C 7.3.1 ▇▇▇▇▇▇▇▇▇ 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 4.5(d)7.2.3) unless:
(ia) E&C ▇▇▇▇▇▇▇▇▇ has complied with its obligations under Section 4.5 and the other provisions of this Article 4 7.2 and has provided Parent Alamos with a copy of all material documentation relating to the Superior Proposal; and
(iib) a period (the “Response Period”) of five Business Days shall have (5) business days has elapsed from the date that is the later of:
(i) the date on which Parent received both a copy of the Superior Proposal together with Alamos receives written notice from E&C the ▇▇▇▇▇▇▇▇▇ Board that the ▇▇▇▇▇▇▇▇▇ Board of Directors has determined, subject only to compliance with this Section 4.67.3, to accept, approve approve, endorse, recommend or enter into a binding definitive agreement with respect to proceed with such Superior Proposal; and
(ii) the date Alamos receives a copy of the Superior Proposal.
(b) 7.3.2 During the Response Period, Parent Alamos will have the right, but not the obligation, to offer to amend this Agreement and the terms Plan of the 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 aggregate consideration. The ▇▇▇▇▇▇▇▇▇ Board shall review any such offer by Alamos to be received by amend this Agreement and the Securityholders Plan of Arrangement to determine whether the Acquisition Proposal to which Parent Alamos is responding would continue to be a Superior Proposal when assessed against the Arrangement as it is proposed in writing by Parent Alamos to be amended. If the ▇▇▇▇▇▇▇▇▇ Board of Directors does not so determinedetermines that the Acquisition Proposal no longer constitutes a Superior Proposal, the ▇▇▇▇▇▇▇▇▇ Board will cause ▇▇▇▇▇▇▇▇▇ to enter into an amendment to this Agreement with Alamos incorporating the amendments to the Agreement and Plan of Directors Arrangement as set out in the written offer to amend, and will promptly reaffirm its recommendation of the Arrangement as amendedand by the prompt issuance of a press release to that effect. If the ▇▇▇▇▇▇▇▇▇ Board determines that the Acquisition Proposal continues to be a Superior Proposal, ▇▇▇▇▇▇▇▇▇ may approve and recommend that holders of Directors does so determine, E&C ▇▇▇▇▇▇▇▇▇ Shares accept such Superior Proposal and may approve, recommend, terminate this Agreement pursuant to Section 8.2.1(d)(i) in order to accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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) 7.3.3 Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders holders of the ▇▇▇▇▇▇▇▇▇ Shares shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 7.3 and Parent Alamos shall be afforded a new Response Period and the rights afforded in Section 7.3.2 in respect of each such Acquisition Proposal.
7.3.4 Where at any time before the ▇▇▇▇▇▇▇▇▇ Meeting, ▇▇▇▇▇▇▇▇▇ has provided Alamos with a notice under Section 7.3.1 hereof, an Acquisition Proposal has been publicly disclosed or announced, and the Response Period will not elapse at least three (3) business days prior to the scheduled date for the ▇▇▇▇▇▇▇▇▇ Meeting, then, subject to applicable ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ may and, at Alamos’s request, ▇▇▇▇▇▇▇▇▇ will, postpone or adjourn the ▇▇▇▇▇▇▇▇▇ Meeting to a date acceptable to Alamos, acting reasonably, which shall not be later than ten days after the scheduled date of the ▇▇▇▇▇▇▇▇▇ Meeting and shall, in the event that Alamos and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ the terms of this Agreement pursuant to Section 7.3.2 hereof, ensure that the details of such amended Agreement are communicated to the ▇▇▇▇▇▇▇▇▇ Shareholders prior to the resumption of the adjourned ▇▇▇▇▇▇▇▇▇ Meeting.
Appears in 2 contracts
Sources: Arrangement Agreement (Alamos Gold Inc), Arrangement Agreement (Esperanza Resources Corp)
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Common Shareholders the Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) Subject to Section 4.6(b), E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a the Person making the Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(ib) E&C the Company has complied been, and continues to be, in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board to enter into such definitive agreement with respect to such Superior Proposal, together with 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 Notice”);
(d) the Company has provided Parent with the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all material documentation relating supporting materials, including any financing documents supplied to the Superior Proposal; andCompany in connection therewith;
(iie) a period at least four Business Days (the “Response Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which Parent the Purchaser received both a copy of the Superior Proposal together with written notice from E&C that Notice and the Board date on which the Purchaser received all of Directors determined, subject only to compliance with this the materials set forth in Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with the Superior Proposal.5.4(1)(d);
(bf) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Matching Period, the 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. The Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board of Directors will to recommend that the Company 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 entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Termination Fee 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 Board shall review any such proposal offer made by Parent the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders 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 Parent is responding would be a Superior Proposal when assessed against Proposal; and (b) the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines that such Acquisition Proposal would cease to be a Superior Proposal, the Board of Directors will Company shall promptly reaffirm its recommendation of so advise the Arrangement Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement are necessary to proceed with the Superior Proposal. Notwithstanding give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(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 the Securityholders securityholders of the Company or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent the Purchaser shall be afforded a new Response four Business Day Matching Period from 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)(d) with respect to the new Superior Proposal from the Company.
(4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of each this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such Acquisition Proposalpress release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) 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 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.
(6) 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
Appears in 2 contracts
Sources: Arrangement Agreement (Cnooc LTD), Arrangement Agreement (Nexen Inc)
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) Subject to Section 4.6(b), E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a the Person making the Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(ib) E&C the Company has complied been, and continues to be, in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board to enter into a definitive agreement with respect to such Superior Proposal, together with 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 Notice");
(d) the Company has provided Parent with to the Purchaser a copy of all material documentation relating the proposed definitive agreement with respect to the Superior Proposal and all supporting materials (including any financing commitments or other documents in possession of the Company and its Representatives containing material terms and conditions of such Superior Proposal; and);
(iie) a period (the “Response Period”) of at least five Business Days shall (the "Matching Period") have elapsed from the date that is the later of the date on which Parent the Purchaser received both the Superior Proposal Notice and the date on which the Purchaser received a copy of the proposed definitive agreement with respect to the Superior Proposal together with written notice from E&C that and all supporting materials (including any financing commitments or other documents in possession of the Board Company and its Representatives containing material terms and conditions of Directors determined, subject only to compliance with this Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with the such Superior Proposal.) from the Company;
(bf) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Matching Period, the Board has determined in good faith after consultation with its 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. The Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)); and
(h) prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Termination Fee 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 Board of Directors will shall review in good faith any such proposal offer made by Parent the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders Arrangement in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which Parent is responding would be a Superior Proposal when assessed against Proposal; and (b) the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines that such Acquisition Proposal would cease to be a Superior Proposal, the Board of Directors will Company shall promptly reaffirm its recommendation of so advise the Arrangement Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser and shall take and cause to be taken all such actions as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement are necessary to proceed with the Superior Proposal. Notwithstanding give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(c3) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent the Purchaser shall be afforded a new Response five Business Day Matching Period from the later of the date on which the Purchaser received the Superior Proposal Notice and a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as required by the Purchaser and its counsel.
(5) 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 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 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) 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 Agreement shall prevent the Board from 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 each such an Acquisition Proposal that is not a Superior Proposal.
(8) Without limiting the generality of this Article 5, 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 out in this Article 5 by the Company, its Subsidiaries or their respective Representatives shall be deemed to be a breach of this Article 5 by the Company.
Appears in 1 contract
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal , the Board may, or may cause the Company to, make a Change in Recommendation and approve, rec ommend or enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) Subject the Company has been, and continues to Section 4.6(b)be, E&C covenants in compliance with its obligations under this Article 5;
(b) the Company or its Representatives have delivered to the Purchaser a written notice of the determination of the Board that it will not accept, has received a Superior Proposal and of the intention to approve, recommend or enter into a def initive agreement with respect to such Superior Proposal, including a notice as to the value in financial terms that the Board has, in consultation with its financial advisors, determined should be ascribed to any agreementnon -cash consideration offered under the S uperior Proposal ( the Su‡perior Proposal Notice );·
(c) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(d) at least five Business Days ( the M‡atching Period ) h·ave elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the definitive agreement for the Superior Proposal;
(e) after the Matching Period, understanding or arrangement the Board has det ermined in respect of good faith, after consultation with its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (other than a confidentiality agreement permitted and, if applicable, compared to the terms of the Arrangement as proposed to be amended by t he Purchaser under Section 4.5(d5.4(2) )) unless:;
(if) E&C the approval of the Arrangement Resolution by the Company Shareholders has complied with its obligations under Section 4.5 and the other provisions of this Article 4 and has provided Parent with a copy of all material documentation relating to the Superior Proposalnot been obtained; and
(iig) prior to or concurrently with m aking a period (Change in Recommendation or entering into such definitive agreement the “Response Period”Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) of five Business Days shall have elapsed from and pays the date on which Parent received both a copy of the Superior Proposal together with written notice from E&C that the Board of Directors determined, subject only Compa ny Termination Amount pursuant to compliance with this Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with the Superior Proposal8.2(2) .
(b2) During the Response Matching Period, Parent will have or such longer period as the right, but not Company may approve in writing for such purpose: (a) the obligation, to B oard shall review any offer made by the Purchaser to amend the terms of this Agreement and the Arrangement. The Board of Directors will review any Arrangement in good faith, after consultation with outside legal and financial advisors, in order to determine whether such proposal by Parent would, upon acceptance, resu lt in the Acquisition Proposal previously constituting a Superior Proposal ceasing to amend be a Superior Proposal; and (b) the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine whether the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed by Parent to be amended. If would enable the Board of Directors does not so determine, the Board of Directors will promptly reaffirm Purchaser and/or its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement affiliates to proceed with the Superior Proposaltransactions contemplated by this Agreement on such amended terms. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling and holding If as a consequence of the Meeting and, if foregoing the requisite approvals of E&C Securityholders are obtained pursuant Board determines that such Acquisition Proposal would cease to Section 2.3 hereofbe a Superior P roposal, the application for Company shall promptly so advise the Final OrderPurchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall continuetake and cause to be taken all such actions as are necessary to give effect to t he foregoing.
(c3) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Company Shareholders or other material terms or conditions ther eof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4 .
(4) Nothing in this Agreement shall prohibit the Board from responding through a di rectors ¶ circular or otherwise as required by applicable Securities Laws to an Acquisition Proposal that it determines is not a Superior Proposal. Further, nothing in this Agreement shall prevent the Board fro m making any disclosure to the Company S harehol ders if the Board, acting in good faith and Parent 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 Board or such disclosure is other wise required under Law; provided, however, that, notwithstanding the Board shall be afforded permitted to make such disclosure, the Board shall not be permitted to make a new Response Period Change in respect Recommendation, other than as permitted by Section 5.4(1) .
(5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than five Business Days before the Company Meeting, the Company shall be entitled to, and shall upon request from Purchaser, postpone the Company Meeting to a da te that is not more than 15 Business Days after the scheduled date of each such Acquisition Proposalthe Company Meeting (and, in any event, no less than 5 Business Days prior to the Outside Date).
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (1) If at any time following the date of this Agreement and prior to obtaining the Required Shareholder Approval at the Meeting, the Corporation receives an unsolicited bona fide written Acquisition Proposal that constitutes a Superior Proposal, the Board may authorize the Corporation to make a Change in Recommendation or enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(a) Subject to Section 4.6(b), E&C covenants that it will such Superior Proposal did not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect arise as a result of a Superior Proposal (other than a confidentiality agreement permitted violation by Section 4.5(d)) unless:
(i) E&C the Corporation directly or indirectly through its Subsidiaries or its or their respective Representatives of this Article 5 in any material respect, and the Corporation has complied been and continues to be in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 and 5 in all material respects;
(b) the Corporation has provided the Parent with written notice detailing the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board to enter into such definitive agreement (the Superior Proposal Notice);
(c) the Corporation has provided the Parent with an unredacted copy of the proposed definitive agreement for the Superior Proposal and all material documentation relating schedules and exhibits thereto, together with any financing documents supplied to the Superior Proposal; andCorporation in connection therewith;
(iid) a period four (4) Business Days (the “Response Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which the Parent received both a copy of the Superior Proposal together with written notice from E&C Notice and the date on which the Parent received all of the materials set forth in Section 5.4(1)(c) above (it being understood that the Corporation shall promptly, and in any event within twenty four (24) hours, inform the Parent of any amendment to the financial or other material terms of such Superior Proposal during such period);
(e) after the Matching Period and subject to the Corporation’s compliance with Section 5.4(2), the 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 Directors the Arrangement as proposed to be revised by the Parent under Section 5.4(2);
(f) after the Matching Period, the Board has determined, subject only in good faith, after consultation with its outside legal counsel, that failure of the Board to compliance with this Section 4.6, make a Change in Recommendation or to accept, approve recommend or enter into a binding definitive agreement with respect to proceed such Superior Proposal would be inconsistent with the its fiduciary duties; and
(g) prior to or concurrently with entering into a definitive agreement with respect to such Superior Proposal, the Corporation validly terminates this Agreement pursuant to Section 7.2(3)(b) and pays the Corporation Termination Fee in full pursuant to Section 7.3.
(b2) During the Response Matching Period, or such longer period as the Corporation may approve in writing for such purpose: (a) the Corporation shall negotiate (and direct its Representatives to negotiate) in good faith with the Parent will and its Representatives (to the extent the Parent desires to negotiate); and (b) the Parent shall have the right, but not the obligation, to offer propose revisions to amend the terms of this Agreement and the Arrangement. The ; and (c) the Board of Directors will shall review any such proposal by Parent proposed revisions to amend the terms of this Agreement and the ArrangementArrangement in good faith in order to determine, including an increase inin consultation with its financial and outside legal advisors, or modification ofwhether such revisions, if given effect, would cause the consideration Superior Proposal giving rise to be received by the Securityholders Matching Period to determine whether the Acquisition Proposal cease to which Parent is responding would be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as 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 Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(c3) Each successive amendment modification to any Acquisition Proposal that results in an increase into, or a modification of, the amount or form of consideration (or value of such consideration) to be received by Shareholders or other amendment to the Securityholders material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this the requirements under Section 4.6 5.4, and the Parent shall be afforded a new Response two (2) Business Day Matching Period from the later of the date on which the Parent received the Superior Proposal Notice and the date on which the Parent received all of the materials set forth in Section 5.4(1)(c) above.
(4) Upon the written request of the Parent, the Board shall promptly reaffirm the Board Recommendation by press release (but, on no more than two (2) occasions) after any Acquisition Proposal which is not determined by the Board to be a Superior Proposal is publicly announced or the Board determines that a proposed revision to the terms of this Agreement as contemplated under Section 5.4(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 each no more than ten (10) 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 ten (10) Business Day period). The Corporation shall provide the Parent and its outside legal advisors with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Parent and its counsel.
(5) If the Corporation provides a Superior Proposal Notice to the Parent after a date that is less than five (5) Business Days before the Meeting, the Corporation may, and shall if directed by the Parent, 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 event to a date that is not less than three (3) Business Days prior to the Outside Date.
Appears in 1 contract
Sources: Arrangement Agreement (Fusion Pharmaceuticals Inc.)
Right to Match. (a) Subject to Section 4.6(b), E&C The Company covenants that it will shall not approve, accept, approveendorse, 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 4.5(d7.2(c)) unless:
(i) E&C the Company has complied with its obligations under Section 4.5 7.2 and the other provisions of this Article 4 Section 7.3 and has provided Parent the Purchaser with a copy of all material documentation relating to the Superior Proposal; Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Company Board setting out the value or range of values in financial terms that the Company Board, in consultation with the Company Financial Advisors, determined in good faith should be ascribed to such non-cash consideration);
(ii) a period (the “Response Period”) of five Business Days shall have (5) calendar days has elapsed from the date that is the later of (i) the date on which Parent received both a copy of the Superior Proposal together with Purchaser receives written notice from E&C the Company Board that the Company Board of Directors has determined, subject only to compliance with this Section 4.67.3, to approve, accept, approve endorse, recommend or enter into a binding written agreement with respect to proceed with the Superior Proposal, and (ii) the date the Purchaser receives a copy of the Superior Proposal from the Company and the Company Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal;
(iii) if the Purchaser has proposed to amend the terms of this Agreement in accordance with Section 7.3(b), then, as required by Section 7.3(b), the Company Board shall have determined in good faith, after consultation with the Company Financial Advisors and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(iv) the Company shall have terminated this Agreement pursuant to Section 8.2; and
(v) the Company shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to the Purchaser (or as the Purchaser may direct by notice in writing) the Termination Fee.
(b) During the Response Period, Parent will the Purchaser shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. The Board During the Response Period, the Company shall negotiate in good faith with the Purchaser to enable the Purchaser to make such amendments to the terms of Directors will review this Agreement and the Plan of Arrangement as would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. Within five (5) calendar days (the “Review Period”) of any such proposal offer by Parent the Purchaser to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the consideration to be received by aggregate Consideration, the Securityholders to Company Board shall review and determine whether the Acquisition Proposal to which Parent the Purchaser is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as it is they are proposed by Parent the Purchaser to be amended. Such determination to be made by the Company Board shall be communicated to the Purchaser by the end of the Review Period. If the Company Board determines that the Acquisition Proposal to which the Purchaser is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Directors does not so determineArrangement as they are proposed by the Purchaser to be amended, the Company shall enter into an amendment to this Agreement to give effect to such amendments and the Company Board of Directors will shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as amended. If described in Section 2.5(b) by the Board prompt issuance of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement a press release to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 continuethat effect.
(c) Where the Company has provided the Purchaser notice pursuant to Section 7.3(a)(ii) less than seven (7) calendar days prior to the Company Meeting, if requested to do so by the Purchaser, the Company shall postpone or adjourn the Company 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 notice; provided, however, that in the event that the Company Meeting is so adjourned, the Outside Date shall be extended by the same number of days as the Company Meeting has been adjourned.
(d) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 7.3 and Parent the Purchaser shall be afforded a new Response Period and the rights afforded in Section 7.3(b) in respect of each such Acquisition Proposal.
(e) Notwithstanding any of the provisions of Section 7.2 and Section 7.3, the Company Board shall have the right to respond, within the time and in the manner required by applicable Securities Laws, to any take-over bid or tender or exchange offer made for the Company Shares that it determines is not a Superior Proposal; provided that:
(i) the Purchaser and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Company Board shall give reasonable consideration to such comments; and
(ii) notwithstanding that the Company Board may be permitted to respond in the manner set out herein to a take-over bid, the Company Board shall not be permitted to make a Company Change in Recommendation unless the provisions of Section 7.2 and Section 7.3 are met.
Appears in 1 contract
Sources: Arrangement Agreement (B2gold Corp)
Right to Match. (a) Subject to Section 4.6(b5.2(b), E&C covenants Fibrek agrees that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior an Acquisition Proposal (other than a confidentiality and standstill agreement permitted by Section 4.5(d5.1(d)) unlessand/or withdraw, modify or qualify its approval or recommendation of the Offer in any manner adverse to the Offeror and recommend or approve the Acquisition Proposal, unless and until:
(i) E&C the Board of Directors determines that the Acquisition Proposal constitutes a Superior Proposal;
(ii) Fibrek has complied with its obligations under Section 4.5 and the all other provisions of this Article 4 and has provided Parent 5 including providing the Offeror with a full and complete copy of all material documentation relating to the Superior Acquisition Proposal; and;
(iiiii) a period (the “Response Period”) of five (5) Business Days shall have elapsed from the later of (A) the date on which Parent the Offeror received both a copy of the Superior Proposal together with written notice from E&C the Board of Directors that the Board of Directors determined, subject only to compliance with this Section 4.65.2, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal and (B) the date the Offeror received a full and complete copy of such Acquisition Proposal;
(iv) after the Response Period, the Board of Directors determines in good faith, after consultation with its financial and legal advisors, that such Acquisition Proposal, after due consideration of any amendments to the Offer proposed by the Offeror pursuant to Section 5.2(b) hereof, continues to constitute a Superior Proposal; and
(v) Fibrek concurrently terminates this Agreement pursuant to Section 8.1(e) and has paid or concurrently pays to the Offeror the Termination Fee pursuant to Section 5.3(a).
(b) During the Response Period, Parent the Offeror will have the right, but not the obligation, to offer to amend in writing the terms of this Agreement and the ArrangementOffer. Fibrek agrees that, if requested by the Offeror, it will negotiate with the Offeror in good faith to amend the terms of this Agreement and the Offer. The Board of Directors will review any such proposal by Parent written amendment to amend determine, in good faith in the terms exercise of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine its fiduciary duties whether the Acquisition Proposal to which Parent the Offeror is responding would be a Superior Proposal when assessed against the Arrangement Offer as it is proposed by Parent the Offeror to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly cause Fibrek to enter into an amendment to this Agreement reflecting the proposal by the Offeror to amend the terms of the Offer and upon the execution by the Parties of such amendment will reaffirm its recommendation of the Arrangement Offer, as so 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 Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.2 and Parent the Offeror shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 1 contract
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Board may (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 in respect of such Superior Proposal, if and only if:
(a) Subject the Company has been, and continues to Section 4.6(b)be, E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:
(i) E&C has complied compliance with its obligations under Section 4.5 Article 5 in all material respects;
(b) the Company has delivered to the Purchaser a written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the other provisions intention of this Article 4 the Board to enter into a definitive agreement and make a Change in Recommendation with respect to such Superior Proposal (the “Superior Proposal Notice”);
(c) the Company has provided Parent with the Purchaser a copy of all material documentation relating to the definitive agreement for the Superior Proposal; andProposal and all other material agreements to be entered into in connection therewith;
(iid) a period at least four (4) full Business Days (the “Response Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which Parent the Purchaser received both a copy of the Superior Proposal together with written notice from E&C that Notice and the Board date on which the Purchaser received all of Directors determined, subject only the materials referred to compliance with this in Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with the Superior Proposal.5.4(1)(c);
(be) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(f) after the Matching Period, the Board has determined in good faith, after consultation with the Company's outside legal counsel and financial advisers, (i) that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement. The Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)) and (ii) that the failure by the Board of Directors will 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
(g) prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) [Superior Proposal] and pays the Termination Fee pursuant to Section 8.2.
(2) During the Matching Period, or such longer period as the Company may approve in its sole discretion in writing for such purpose: (a) the 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 (and Special Committee) shall, in consultation with the Company's outside legal counsel and financial advisers, review any such proposal offer made by Parent the Purchaser under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders 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 Parent is responding would be a Superior Proposal, and (b) if the Acquisition Proposal when assessed against would no longer constitute a Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Plan of Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines (based upon, inter alia, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement Special Committee) that such Acquisition Proposal would cease to proceed with the be a Superior Proposal. Notwithstanding , the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(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 the Securityholders Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent the Purchaser shall be afforded a new Response full three (3) Business Day Matching Period from 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 referred to in Section 5.4(1)(c) with respect to each new Superior Proposal from the Company.
(4) The Board shall promptly reaffirm (subject to Section 5.1(1)(d)) the Board Recommendation by press release after any Acquisition Proposal which is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of each this Agreement or the Plan of Arrangement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall give reasonable consideration to any comments provided by the Purchaser and its outside legal counsel.
(5) If the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than 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 Article 5 shall prohibit the Board (or the Special Committee) from:
(a) responding through a directors' circular or otherwise as required by Law to an Acquisition Proposal, provided that the Company shall provide 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 provided by the Purchaser and its outside legal counsel; 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 an Acquisition Proposal to the extent ordered or otherwise mandated by a court of competent jurisdiction in accordance with Law; provided, however, in each case that, notwithstanding that the Board shall be permitted to take the actions contemplated in Subparagraphs (a) and (b) above the Board shall not be permitted to make a Change in Recommendation except as pursuant to the terms of this Article 5.
(7) From the date of this Agreement until the 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 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 and between the Parent and the Company, shall terminate and be of no further force or effect as of the date of this Agreement.
Appears in 1 contract
Right to Match. (a1) Subject If Corporation receives an Acquisition Proposal that constitutes a Superior Proposal prior to Section 4.6(b)receipt of the Required Shareholder Approval, E&C covenants that it will not accept, the Board (or any special committee thereof) may approve, recommend or enter into any agreementa definitive agreement with respect to such Acquisition Proposal, understanding or arrangement make a Change in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unlessRecommendation, if and only if:
(ia) E&C the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing standstill or similar restriction;
(b) Corporation has complied been, and continues to be, in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 5;
(c) Corporation has delivered to Purchaser a written notice of the determination of the Board (or any committee thereof) that such Acquisition Proposal constitutes a Superior Proposal and has provided Parent of the intention of the Board (or any special committee thereof) to approve, recommend or enter into a definitive agreement with respect to such Superior Proposal, together with a copy of all material documentation relating such definitive agreement (including any ancillary agreements and any financing documents supplied to the Superior Proposal; and
(iiCorporation in connection therewith) a period (the “Response Superior Proposal Notice”);
(d) at least five Business Days (the “Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which Parent Purchaser received both the Superior Proposal Notice and a copy of the proposed definitive agreement for the Superior Proposal together with written notice from E&C that the Board of Directors 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.Corporation;
(be) During the Response during any Matching Period, Parent will have Purchaser has had the right, opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(f) if Purchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2), the 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 compared to the terms of the Arrangement. The Arrangement as proposed to be amended by Purchaser under Section 5.4(2);
(g) the Board has determined in good faith, after consultation with Corporation’s outside legal counsel, that the failure of Directors will the Board to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; and
(h) prior to or concurrently with entering into such definitive agreement, Corporation terminates this Agreement pursuant to Section 7.2(1)(c)(ii) [Superior Proposal] and pays the Termination Fee pursuant to Section 8.2.
(2) During the Matching Period, or such longer period as Corporation may approve (in its sole discretion) in writing for such purpose: (a) 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, (b) the Board (or any special committee thereof) shall review any such proposal offer made by Parent Purchaser to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as 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 Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 and Parent shall be afforded a new Response Period in respect of each such Acquisition Proposal.previously
Appears in 1 contract
Right to Match. (a1) Subject If Corporation receives an Acquisition Proposal that constitutes a Superior Proposal prior to Section 4.6(b)the approval of the Arrangement Resolution by Shareholders, E&C covenants that it will not accept, the Board may make a change in recommendation and approve, recommend or enter into any agreementa definitive agreement with respect to such Acquisition Proposal, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unlessif and only if:
(ia) E&C Corporation has complied been, and continues to be, in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 and has provided Parent with a copy of all material documentation relating to the Superior Proposal; and5;
(iib) Corporation has delivered to Purchaser a period (the “Response Period”) of five Business Days shall have elapsed from the date on which Parent received both a copy written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal together and that, in its good faith judgment (after consultation with written notice from E&C that Corporation’s outside counsel), failure to recommend such Acquisition Proposal to Shareholders would be inconsistent with its fiduciary duties under applicable Laws, and of the intention of the Board of Directors determinedto approve, subject only to compliance with this Section 4.6, to accept, approve recommend or enter into a binding definitive agreement with respect to proceed with such Superior Proposal (the "Superior Proposal Notice");
(c) Corporation has provided Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(d) at least five Business Days (the "Matching Period") have elapsed from the later of the date on which Purchaser received the Superior Proposal Notice or the date on which Corporation delivered the materials set out in Section 5.4(1)(c);
(e) Purchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2) and the Board has determined in good faith, after consultation with Corporation's outside legal counsel and financial advisers, that such Acquisition Proposal continues to constitute a Superior Proposal compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 5.4(2); and
(f) prior to or concurrently with making a Change in Recommendation and entering into such definitive agreement Corporation terminates this Agreement pursuant to Section 7.2(1)(c)(ii) [Superior Proposal] and pays the Termination Fee pursuant to Section 8.2.
(b2) During the Response Matching Period, Parent will or such longer period as Corporation may approve (in its sole discretion) in writing for such purpose: (a) Purchaser shall have the right, opportunity (but not the obligation, ) to offer to amend the terms of Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal; (b) the Arrangement. The Board of Directors will shall review any such proposal offer made by Parent Purchaser to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders 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 Parent is responding would be a Superior Proposal when assessed against Proposal; and (c) Corporation shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement determines that such Acquisition Proposal would cease to proceed with the be a Superior Proposal. Notwithstanding , Corporation shall promptly so advise Purchaser and Corporation and Purchaser shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(c3) Each successive material amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent Purchaser shall be afforded a new Response three Business Day Matching Period from the date on which Purchaser received the Superior Proposal Notice for the new Superior Proposal from Corporation.
(4) If Corporation provides a Superior Proposal Notice to Purchaser after a date that is less than ten 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 fifteen Business Days after the scheduled date of the Meeting.
(5) Nothing contained in this Article 5 shall prohibit the Board from:
(a) responding through a directors' circular or otherwise as required by Law to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Corporation shall provide Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of such 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 an Acquisition Proposal to the extent ordered or otherwise mandated by a court of each such Acquisition Proposalcompetent jurisdiction in accordance with Law.
Appears in 1 contract
Sources: Arrangement Agreement (Nordion Inc.)
Right to Match. (a) Subject to Section 4.6(b5.3(b), E&C the Company covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d5.2(d)) unless:
(i) E&C an Acquisition Proposal has complied with its been made that the Board of Directors or relevant committee thereof determines in good faith constitutes a Superior Proposal;
(ii) such Acquisition Proposal did not result from the willful and intentional breach of the Company’s obligations under Section 4.5 5.2 and the other provisions of this Article 4 and Company has provided Parent Purchaser with a copy of all material documentation relating to the Superior Proposal; and;
(iiiii) the Arrangement Resolution shall not yet have received the Requisite Approval at the Company Meeting;
(iv) a period (the “Response Period”) of five Business Days shall have elapsed from the date on which Parent Purchaser received both written notice (which notice shall include a copy of the Superior Proposal together with written notice from E&C documentation constituting the Acquisition Proposal) that the Board of Directors or relevant committee thereof determined, subject only to compliance with this Section 4.65.3, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior ProposalProposal (the “Superior Proposal Notice”);
(v) if Purchaser has proposed to amend the terms of this Agreement in accordance with Section 5.3(b), the Board of Directors or relevant committee thereof shall have determined in good faith after consultation with legal and financial advisors that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(vi) the Company shall have terminated, or shall concurrently terminate, this Agreement pursuant to Section 10.2(a)(iv)(A); and
(vii) the Company has previously, or concurrently will have, paid to Purchaser (or as Purchaser may direct by notice in writing) the Termination Fee pursuant to Section 10.4(a)(ii). In addition, notwithstanding any provision of this Agreement (but subject to the right of termination under Section 10.2(a)(iii)(B)), the Board of Directors and relevant committee thereof may make a Change in Recommendation and recommend or approve an Acquisition Proposal provided that the requirements of clauses (i) through (v) of this Section 5.3(a) are satisfied.
(b) During the Response Period, Parent ,
(i) Purchaser will have the right, but not the obligation, to offer to amend the terms of the Arrangementthis Agreement. The Board of Directors or relevant committee thereof will review any such written proposal by Parent Purchaser to amend the terms of the Arrangementthis Agreement in good faith, including an increase in, or modification of, the consideration Consideration to be received by the Securityholders Company Shareholders (other than Hydrogen Company and its affiliates), to determine whether the Acquisition Proposal to which Parent Purchaser is responding would be constitute a Superior Proposal when assessed against the Arrangement as it is proposed by Parent Purchaser to be amended. If the Board of Directors or relevant committee thereof does not so determine, the Board of Directors or relevant committee thereof will promptly reaffirm its recommendation of the transactions contemplated under this Agreement in substantially the same manner as described in Section 1.4 of Schedule C hereto and the Parties will negotiate in good faith and enter into an amended agreement on reasonable terms reflecting the amendments to the Arrangement as amended. proposed by Purchaser.
(ii) If the Board of Directors or relevant committee does so determine, E&C the Company may after the end of the Response Period, approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 and Parent shall be afforded a new 5.3, provided that the Response Period in respect of each such new Acquisition Proposal shall extend only until the later of the end of the initial five Business Day Response Period and 24 hours after the Purchaser has received the Superior Proposal Notice for the new Acquisition Proposal.
(d) If the Response Period would not terminate before the date fixed for the Company Meeting, the Company shall adjourn or postpone the Company Meeting to a date that is at least five Business Days after the expiration of the Response Period (but not later than the fifth Business Day prior to the Outside Date).
Appears in 1 contract
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Company Shareholders, the Company Board may authorize the Company to, subject to compliance with Section 7.4, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) Subject to Section 4.6(b), E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a the Person making the Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:was not restricted from making such Superior Proposal pursuant to an existing standstill or similar restriction;
(ib) E&C the Company has complied been, and continues to be, in compliance in all material respects with its obligations under Section 4.5 Article 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the other provisions intention of this Article 4 and has provided Parent the Company Board to enter into such definitive agreement with respect to such Superior Proposal, together with a copy of all material documentation relating written notice from the Company Board regarding the value and financial terms that the Company Board, in consultation with its financial advisors, has determined should be ascribed to the any non-cash consideration offered under such Superior Proposal; and
(ii) a period Proposal (the “Response Superior Proposal Notice”);
(d) at least five Business Days (the “Matching Period”) of five Business Days shall have elapsed from the date on which Parent the Purchaser received both a copy of the Superior Proposal together with written notice Notice from E&C that the Board of Directors 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.Company;
(be) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to the Company to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(f) if the Purchaser has offered to the Company to amend this Agreement and the Arrangement under Section 5.4(2), the Company Board has determined in good faith, after consultation with the Company’s outside legal counsel and financial advisers, that such Acquisition Proposal continues to constitute a Superior Proposal compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2);
(g) the Company Board has determined in good faith, after consultation with the Company’s outside legal counsel and financial advisors that it is appropriate for the Company to enter into a definitive agreement with respect to such Superior Proposal; and
(h) prior to or concurrent with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Termination Fee pursuant to Section 7.4.
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Company Board shall review any offer made by the Purchaser under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement. The Board of Directors will review any such proposal by Parent to amend Arrangement in good faith, in consultation with the terms of the ArrangementCompany’s outside legal counsel and financial advisers, including an increase in, or modification of, the consideration to be received by the Securityholders in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which Parent is responding be a Superior Proposal; and (b) if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal when assessed against as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed by Parent to be amended. If would enable the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal. Notwithstanding , the Company shall promptly so advise the Purchaser and the Parties shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(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 the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent the Purchaser shall be afforded a new Response Period five Business Day matching period from the date on which the Purchaser received the new Superior Proposal Notice from the Company.
(4) At the Purchaser’s request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after the Company Board determines that an Acquisition Proposal is not a Superior Proposal or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in respect an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of each any such Acquisition Proposalpress release and shall make all reasonable amendments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If the Company provides a Superior Proposal Notice to the Purchaser on or after a date that is less than ten Business Days before the Company Meeting, the Company shall, at the Purchaser’s request, postpone the Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than ten Business Days after the scheduled date of the Company Meeting but before the Outside Date.
Appears in 1 contract
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board may make a Change in Recommendation and enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) Subject to Section 4.6(b), E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a the Person making the Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(ib) E&C the Company has complied been, and continues to be, in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board to make a Change in Recommendation and enter into a definitive agreement with respect to such Superior Proposal, together with 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 Notice”);
(d) the Company or its Representatives have provided Parent with to the Purchaser a copy of all material documentation relating 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; and);
(iie) a period at least five Business Days (the “Response Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which Parent the Purchaser received both the Superior Proposal Notice and the date on which the Purchaser received a copy of the proposed definitive agreement with respect to the Superior Proposal together with written notice from E&C that (including any financing commitments or other documents in possession of the Board Company and its Representatives containing material terms and conditions of Directors determined, subject only to compliance with this Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with the such Superior Proposal.) from the Company;
(bf) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Matching Period, the Board has determined in good faith (i) after consultation with its 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 the Purchaser under Section 5.4(2)) and (ii) after consultation with its outside legal counsel, the failure for the Board to take such action with respect to such Superior Proposal would be inconsistent with its fiduciary duties to the Company; and
(h) the terms of any definitive agreement entered into in connection with such Superior Proposal (i) do 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 Arrangement. The Voting and Support Agreement with the Significant Shareholder (including requiring the Company to delay, adjourn, postpone or cancel the Company Meeting, unless as specifically permitted under this Agreement), (ii) do not provide for the payment of any break, termination or other fees or expenses, 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 alternative transaction with the Purchaser prior to the termination of this Agreement or pursuant to the terms of the Voting and Support Agreement with the Significant Shareholder, and (iii) terminates automatically in accordance with its terms, and is of no further force or effect, without any further liability or obligation of the Company or of any of its Subsidiaries, upon the approval of the Arrangement Resolution by the Shareholders at the Company Meeting or the completion of any alternative transaction pursued by the Purchaser pursuant to the terms of the Voting and Support Agreement with the Significant Shareholder.
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Board of Directors will shall review in good faith any such proposal offer made by Parent the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders Arrangement in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which Parent is responding would be a Superior Proposal when assessed against Proposal; and (b) the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines that such Acquisition Proposal would cease to be a Superior Proposal, the Board of Directors will Company shall promptly reaffirm its recommendation of so advise the Arrangement Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement are necessary to proceed with the Superior Proposal. Notwithstanding give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(c3) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent the Purchaser shall be afforded a new Response five Business Day Matching Period from the later of the date on which the Purchaser received the Superior Proposal Notice and a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as required by the Purchaser and its counsel.
(5) 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 shall postpone or adjourn the Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than 15 Business Days after the scheduled date of the Company Meeting, but in any event the Company Meeting shall not be postponed or adjourned 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 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 Agreement shall: (i) prevent the Board from 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 each an Acquisition Proposal that is not a Superior Proposal; or (ii) prohibit the Company or the Board from calling and/or holding a meeting requisitioned by the Shareholders in accordance with the CBCA (provided the Board shall use its reasonable best efforts to call and hold any such Acquisition Proposalmeeting after the Company Meeting unless ordered otherwise by any Governmental Entity).
(8) Without limiting the generality of this Article 5, 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 out in this Article 5 by the Company, its Subsidiaries or their respective Representatives shall be deemed to be a breach of this Article 5 by the Company.
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a) Subject to Section 4.6(b5.2(b), E&C covenants Zarlink agrees that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior an Acquisition Proposal (other than a confidentiality agreement permitted by Section 4.5(d5.1(d)) or withdraw, modify or qualify its approval or recommendation of the Offers and recommend or approve the Acquisition Proposal, unless:
(i) E&C the Zarlink Board of Directors determines that the Acquisition Proposal constitutes a Superior Proposal;
(ii) Zarlink has complied with its obligations under Section 4.5 and the all other provisions of this Article 4 5 and has provided Parent the Offeror with a copy of all material documentation relating to the Superior Acquisition Proposal; and;
(iiiii) a period (the “"Response Period”") of five three Business Days shall have elapsed from the later of (A) the date on which Parent the Offeror received both a copy of the Superior Proposal together with written notice from E&C the Zarlink Board of Directors that the Zarlink Board of Directors determined, subject only to compliance with this Section 4.65.2, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal and (B) the date the Offeror received a copy of such Acquisition Proposal;
(iv) after the Response Period, the Zarlink Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal continues to constitute a Superior Proposal; and
(v) Zarlink concurrently terminates this Agreement pursuant to Section 8.1(e) and has paid or concurrently pays to the Offeror the Termination Payment pursuant to Section 5.3(a).
(b) During the Response Period, Parent the Offeror will have the right, but not the obligation, to offer to amend in writing the terms of this Agreement and the ArrangementOffers. Zarlink agrees that, if requested by the Offeror, it will negotiate with the Offeror in good faith to amend the terms of this Agreement and the Offers. The Zarlink Board of Directors will review any such proposal by Parent written amendment to amend determine, in good faith in the terms exercise of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine its fiduciary duties whether the Acquisition Proposal to which Parent the Offeror is responding would be a Superior Proposal when assessed against the Arrangement Offers as it is they are proposed by Parent the Offeror to be amended. If the Zarlink Board of Directors does not so determine, the Zarlink Board of Directors will promptly cause Zarlink to enter into an amendment to this Agreement reflecting the proposal by the Offeror to amend the terms of the Offers and upon the execution by the Parties of such amendment will reaffirm its recommendation of the Arrangement Offers, as so amended. If the Zarlink Board of Directors does so determine, E&C Zarlink may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.2 and Parent the Offeror shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 1 contract
Right to Match. (a) Subject to Section 4.6(b5.2(b), E&C covenants Zarlink agrees that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior an Acquisition Proposal (other than a confidentiality agreement permitted by Section 4.5(d5.1(d)) or withdraw, modify or qualify its approval or recommendation of the Offers and recommend or approve the Acquisition Proposal, unless:
(i) E&C the Zarlink Board of Directors determines that the Acquisition Proposal constitutes a Superior Proposal;
(ii) Zarlink has complied with its obligations under Section 4.5 and the all other provisions of this Article 4 5 and has provided Parent the Offeror with a copy of all material documentation relating to the Superior Acquisition Proposal; and;
(iiiii) a period (the “Response Period”) of five three Business Days shall have elapsed from the later of (A) the date on which Parent the Offeror received both a copy of the Superior Proposal together with written notice from E&C the Zarlink Board of Directors that the Zarlink Board of Directors determined, subject only to compliance with this Section 4.65.2, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal and (B) the date the Offeror received a copy of such Acquisition Proposal;
(iv) after the Response Period, the Zarlink Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal continues to constitute a Superior Proposal; and
(v) Zarlink concurrently terminates this Agreement pursuant to Section 8.1(e) and has paid or concurrently pays to the Offeror the Termination Payment pursuant to Section 5.3(a).
(b) During the Response Period, Parent the Offeror will have the right, but not the obligation, to offer to amend in writing the terms of this Agreement and the ArrangementOffers. Zarlink agrees that, if requested by the Offeror, it will negotiate with the Offeror in good faith to amend the terms of this Agreement and the Offers. The Zarlink Board of Directors will review any such proposal by Parent written amendment to amend determine, in good faith in the terms exercise of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine its fiduciary duties whether the Acquisition Proposal to which Parent the Offeror is responding would be a Superior Proposal when assessed against the Arrangement Offers as it is they are proposed by Parent the Offeror to be amended. If the Zarlink Board of Directors does not so determine, the Zarlink Board of Directors will promptly cause Zarlink to enter into an amendment to this Agreement reflecting the proposal by the Offeror to amend the terms of the Offers and upon the execution by the Parties of such amendment will reaffirm its recommendation of the Arrangement Offers, as so amended. If the Zarlink Board of Directors does so determine, E&C Zarlink may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.2 and Parent the Offeror shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 1 contract
Sources: Support Agreement (Microsemi Corp)
Right to Match. (a) Subject to Section 4.6(b), E&C covenants If the Company receives an Acquisition Proposal that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of constitutes a Superior Proposal (other than prior to obtaining the Required Shareholder Approval, the Company Board may, or may cause the Company to, subject to compliance with Section 7.3, terminate this Agreement to enter into a confidentiality definitive agreement permitted by Section 4.5(d)) unlesswith respect to such Superior Proposal, if and only if:
i. 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 with the Company or any of the Company Subsidiaries;
ii. the Company has been, and continues to be, in compliance (iA) E&C has complied with its obligations under Section 4.5 5.1 in all respects, (B) with its obligations under ARTICLE V (other than Section 5.1) in all material respects and (C) its obligations under Section 2.3 and Section 2.4;
iii. the other provisions Company or its Representatives have delivered to Parent a written notice of this Article 4 the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and has of the intention to enter into a definitive agreement with respect to such Superior Proposal (the “Superior Proposal Notice”);
iv. the Company or its Representatives have provided to Parent with a copy of all material documentation relating to the proposed definitive agreements for the Superior Proposal; andProposal (which shall include all schedules, appendices, exhibits and other attachments related thereto including copies of any financing commitments related thereto) and all ancillary documentation and supporting materials (including any financing documents subject to customary confidentiality provisions) and any other material documents or material correspondences (as well as any subsequent amendment or modification with respect to any of the foregoing) provided to or by the Company, and Company Subsidiary or their respective Affiliates and Representatives in connection therewith;
v. at least five (ii5) a period Business Days (the “Response Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which P▇▇▇▇▇ received the Superior Proposal Notice and the date on which Parent received both a copy of all the materials referred to in iv;
vi. during any Matching Period, the Company shall, if requested by P▇▇▇▇▇, negotiate in good faith with P▇▇▇▇▇ and P▇▇▇▇▇’s Representatives, regarding any revision to the terms of the Arrangement and other Transactions proposed by Parent in order for such Acquisition Proposal to cease to be a Superior Proposal;
vii. after the Matching Period, the Company Board has determined in good faith (A) after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal continues to constitute a Superior Proposal together (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by Parent under Section 5.4(b)) and (B) after consultation with written notice from E&C its outside legal counsel and financial advisors, that the Board failure to take the relevant action would be inconsistent with its fiduciary duties under applicable Law;
viii. prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 7.1, and pays the Termination Fee pursuant to Section 7.3; and
ix. the making of Directors determinedthe Acquisition Proposal constituting a Superior Proposal did not result, subject only to compliance with directly or indirectly, from any breach of this Section 4.6, to accept, approve recommend ARTICLE V or enter into a binding agreement to proceed with any other provision of this Agreement or the Superior ProposalConfidentiality Agreement.
(b) During the Response Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) the Company Board shall review in good faith any offer made by Parent will have the right, but not the obligation, to offer under Section 5.4(a)vi to amend the terms of this Agreement and the Arrangement. The Board of Directors will review any Arrangement in order to determine whether such proposal by Parent would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to amend be a Superior Proposal; and (ii) the Company shall, and shall cause its Representatives to, negotiate in good faith with P▇▇▇▇▇ and P▇▇▇▇▇’s Representatives to make such amendments to the terms of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine whether the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed by would enable Parent to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement and Purchaser to proceed with the Transactions on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal. Notwithstanding , the Company shall promptly (and in any event within twenty-four (24) hours of such determination) so advise Parent and the Company and Parent shall amend this Agreement to reflect such offer made by Parent, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4 and Parent shall be afforded a new Response full five (5) Business Day Matching Period from the later of the date on which Parent received the Superior Proposal Notice for the new Superior Proposal and the date on which Parent received all of the materials referred to in Section 5.4(a)iv with respect to such new Superior Proposal.
(d) The Company Board shall promptly (and in any event within twenty-four (24) hours) reaffirm the Company Board Recommendation without qualification by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or publicly disclosed or the Company Board determines that a proposed amendment to the terms of this Agreement or the Arrangement as contemplated under Section 5.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide Parent and its Representatives with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Parent and its outside legal counsel.
(e) If the Company provides a Superior Proposal Notice to Parent on a date that is less than ten (10) Business Days before the Company Meeting, the Company shall either proceed with or shall postpone the Company Meeting, as directed by P▇▇▇▇▇ acting reasonably, to a date determined by Parent that is not more than ten (10) 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 Time from occurring on or prior to the End Date.
(f) Nothing contained in this Agreement shall prohibit the Company Board from complying with Section 2.17 of National Instrument 62- 104 - Take-Over Bids and Issuer Bids and similar provisions under applicable Securities Laws relating to the provision of a directors’ circular in respect of each such an Acquisition Proposal; or prohibit the Company or the Company Board 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 expressly ordered or otherwise mandated by a Governmental Body; provided, however, in each case that, notwithstanding that the Company Board shall be permitted to make such disclosure, the Company Board shall not be permitted to make a Change in Recommendation solely as a result of such disclosure. Any public disclosure made by or on behalf of the Company relating to any Acquisition Proposal shall state that the Company Board Recommendation continues to be in effect, unless, prior to the time of such public disclosure, this Agreement has been terminated in compliance with ARTICLE V.
(g) Without limiting the generality of the foregoing, the Company shall advise its Subsidiaries and its and their Representatives of the prohibitions set out in this ARTICLE V and any violation of the restrictions set forth in this ARTICLE V by the Company, its Subsidiaries or its or their Representatives will be deemed to be a breach of this ARTICLE V by the Company for which the Company will be responsible.
Appears in 1 contract
Right to Match. (a) Subject to Section 4.6(b6.2(b), E&C the Company covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d6.1(d)) unless:
(i) E&C the Company has complied with its obligations under Section 4.5 and the other provisions of this Article 4 6 and has provided Parent the Offeror with a copy of all material documentation relating to the Superior Proposal; and;
(ii) a period (the “Response Period”) of five Business Days or such shorter period as may then remain until the Expiry Date shall have elapsed from the date on which Parent the Offeror received both a copy of the Superior Proposal together with written notice from E&C the Board of Directors that the Board of Directors has determined, subject only to compliance with this Section 4.66.2, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal;
(iii) after the Response Period (if the Offeror has proposed to amend the terms of this Agreement in accordance with Section 6.2(b), the Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Alternative Transaction continues to constitute a Superior Proposal; and
(iv) the Company concurrently terminates this Agreement pursuant to Section 9.1(i) and pays to the Offeror the Termination Fee pursuant to Section 6.3.
(b) During the Response Period, Parent the Offeror will have the right, but not the obligation, to offer to amend in writing the terms of the ArrangementOffer. 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 to be received by the Securityholders written amendment to determine whether the Acquisition Proposal Alternative Transaction to which Parent the Offeror is responding would continue to be a Superior Proposal when assessed against the Arrangement Offer as it is proposed by Parent to be the Offeror as amended. If the Board of Directors does not in good faith so determine, the Board of Directors will promptly cause the Company to enter into an amendment to this Agreement reflecting the offer by the Offeror to amend the terms of the Offer and upon the execution by the Parties of such amendment will reaffirm its recommendation of the Arrangement Offer, as so amended. If the Board of Directors does in good faith so determine, E&C the Company may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal Alternative Transaction that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders shall constitute a new Acquisition Proposal Alternative Transaction for the purposes of this Section 4.6 6.2(a) and Parent the Offeror shall be afforded a new Response Period in respect of each such Acquisition ProposalAlternative Transaction.
Appears in 1 contract
Right to Match. (a) Subject to Section 4.6(b), E&C The Company covenants that it will not accept, approve, approve or recommend or enter into any agreement, understanding understanding, arrangement or arrangement Contract in respect of of, or proceed with or recommend, a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d9.02(b), the execution of which will not be subject to the conditions of this Section 9.03) unless:
: (i) E&C the Company has complied with its obligations under Section 4.5 and the other provisions of this Article 4 and 9; (ii) the Company has provided Parent Purchaser with a copy of all material documentation relating the Superior Proposal together with a written notice from the Company Board of Directors regarding the value and financial terms that the Company Board of Directors has in consultation with its financial advisors determined the value should be ascribed to any non-cash consideration offered under the Superior Proposal; and
and (iiiii) a period (the “Response Period”’’) of five Business Days shall will have elapsed from the later of: (A) the date on which Parent Purchaser received both a copy of the Superior Proposal together with written notice from E&C the Company advising that the Company Board of Directors has determined, subject only to compliance with this Section 4.69.03(a), to accept, approve recommend or enter into a binding agreement an agreement, understanding, arrangement or Contract in respect of, or to proceed with, or recommend, such Superior Proposal; and (B) the date Purchaser receives a copy of the Superior Proposal and if the Purchaser delivers to the Company, prior to the expiry of the Response Period, a proposal to amend the terms of this Agreement and the Plan of Arrangement as contemplated in Section 9.03(c), and the Company Board of Directors determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, taking into account the proposal by Purchaser to amend this Agreement and the Plan of Arrangement, that the Acquisition Proposal remains a Superior Proposal; and (iv) the Company concurrently terminates this Agreement pursuant to Section 11.01(c) and the Company has previously or concurrently paid to Purchaser the fee payable under Section 11.03, the Company acknowledging and agreeing that payment of the fee payable under Section 11.03 is a condition to valid termination of this Agreement under Section 11.01(c) and this Section 9.03.
(b) Nothing contained in this Agreement shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Article 3 of this Agreement unless this Agreement is terminated in accordance with Article 11.
(c) During the Response PeriodPeriod (or such longer period as the Company may agree), Parent Purchaser will have the right, but not the obligation, to offer propose in writing to amend the terms of this Agreement and the Plan of Arrangement. The Company and the Company Board of Directors will review and negotiate in good faith any such proposal received by Parent the Company from Purchaser during the Response Period to determine (after receipt of advice from its financial advisors and outside legal counsel) whether the Acquisition Proposal in respect of which Purchaser is proposing to amend this Agreement and Plan of Arrangement would be a Superior Proposal when assessed against this Agreement and Plan of Arrangement as it is proposed to be amended.
(d) If the Company Board of Directors does not determine that the Acquisition Proposal remains a Superior Proposal when compared to the proposed amendment to this Agreement and the Plan of Arrangement, the Company and Purchaser will promptly execute and deliver an amending agreement amending this Agreement and the Plan of Arrangement, or an amended Agreement, incorporating or reflecting the terms of the Arrangementamendment to the terms of this Agreement and Plan of Arrangement as proposed by Purchaser and the Company will publicly announce that the Company Board of Directors has reaffirmed its recommendation of the Arrangement by news release, including an increase the form of which shall be provided to Purchaser for its review and comment prior to publication.
(e) Each successive modification or amendment to any Acquisition Proposal that results in any change in, or modification of, the consideration to be received by under, or any other material change in the Securityholders to determine whether the terms and conditions of, such Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as 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 Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 9.03 and Parent shall Purchaser will be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 1 contract
Sources: Arrangement Agreement (Thompson Creek Metals CO Inc.)
Right to Match. (1) If, prior to obtaining the Required Approval, the Company receives a Superior Proposal, the Board may, subject to compliance with Article 7 and Section 8.1(1), authorize the Company to enter into a definitive agreement with respect to such Superior Proposal or may make a Change in Recommendation, if and only if:
(a) Subject 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 complied with all of its obligations in this Section 4.6(b), E&C covenants 5.4;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Board that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board to enter into such definitive agreement with respect to such Superior Proposal or to make a Change in Recommendation (other than a confidentiality agreement permitted by Section 4.5(d“Superior Proposal Notice”)) unless:;
(id) E&C has complied with its obligations under Section 4.5 and the other provisions of this Article 4 and Company has provided Parent the Purchaser with a copy of the proposed definitive agreement for the Superior Proposal (if any) and all material documentation relating ancillary documents and materials (including financing documents, subject to customary confidentiality provisions with respect to fee letters or similar information) provided to the Company in connection therewith, 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; and;
(iie) a period (the “Response Period”) of at least five Business Days shall have elapsed from the date that is the later of the date on which Parent the Purchaser received both a copy of the Superior Proposal together with written notice from E&C that Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) (the “Matching Period”);
(f) after the Matching Period, the Board of Directors determinedhas determined in good faith, subject only after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal continues to compliance with this Section 4.6constitute a Superior Proposal (if applicable, compared to accept, approve recommend or enter into a binding agreement to proceed with the Superior Proposal.
(b) During the Response Period, Parent will have the right, but not the obligation, to offer to amend the terms of the Arrangement. The Board of Directors will review any Agreement and the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)); and
(g) prior to or concurrently with entering into such proposal by Parent definitive agreement, the Company terminates this Agreement pursuant to amend Section 7.2(1)(iii)(b) and pays the Termination Fee pursuant to Section 8.2(3).
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make amendments to the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine whether Arrangement as would result in the Acquisition Proposal previously determined to which Parent is responding would constitute a Superior Proposal ceasing to be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as 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 Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 and Parent shall be afforded a new Response Period in respect of each such Acquisition Proposal.;
Appears in 1 contract
Sources: Arrangement Agreement
Right to Match. (a1) Subject to Section 4.6(b7.2(2), E&C Maple covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement agreement in respect of a Superior an Acquisition Proposal (other than a confidentiality and standstill agreement permitted by Section 4.5(d7.1(4)) nor withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Parent the approval or recommendation of the Arrangement, nor accept, approve or recommend any Acquisition Proposal unless:
(ia) E&C an Acquisition Proposal has been made that the Board determines in good faith constitutes a Superior Proposal;
(b) Maple has complied with its obligations under Section 4.5 7.1 and the other provisions of this Article 4 and 7;
(c) Maple has provided Parent with a copy of notice in writing that there is a Superior Proposal and confirmation that the Board has determined that the proposal constitutes a Superior Proposal together with all material documentation relating to comprising the Superior Proposal; and, including any value (including a range of value, if any) in financial terms that the Board has in consultation with its financial advisors determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(iid) a period (the “Response Period”) of five Business Days shall have elapsed from the date on which Parent received both a copy the entirety of the documentation set forth in the prior paragraph, and, if Parent has proposed to amend the terms of the Arrangement in accordance with Section 7.2(2), the Board shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that the Acquisition Proposal is a Superior Proposal together compared to the terms of the Arrangement after giving effect to any offer to amend the terms of the Arrangement made by Parent in accordance with written notice from E&C that Section 7.2(2);
(e) Maple terminates this Arrangement Agreement pursuant to Section 8.2(1)(e); and
(f) Maple has previously, or concurrently will have, paid to Parent the Board of Directors 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 ProposalTermination Fee.
(b2) During the Response Period, Parent will have the right, but not the obligation, to offer to amend the terms of the Arrangement, and Maple shall co-operate with Parent with respect thereto, including negotiating in good faith with Parent to enable Parent to make such adjustments to the terms and conditions of this Arrangement Agreement and the Arrangement as Parent deems appropriate and as would enable Parent to proceed with the Arrangement and any related transactions on such adjusted terms. The Board of Directors will review in good faith, in consultation with its financial and external counsel, any such proposal offer by Parent to amend the terms of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders Maple Shareholders, to determine whether the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent has offered to be amendedamend it. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or and enter into an agreement, understanding or arrangement amended Arrangement Agreement with Parent reflecting Parent’s offer to proceed with amend the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling and holding terms 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 continueArrangement.
(c3) If Maple provides Parent with notice under Section 7.2(1) on a date that is less than five Business Days before the date of the Special Meeting, subject to applicable Laws, Maple shall postpone or adjourn the Special Meeting to a date that is after the Response Period but not more than seven Business Days after the scheduled date of the Special Meeting.
(4) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders holders of Maple Shares shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 7.2 and Parent shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 1 contract
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders and Optionholders, the Board of Directors may, subject to compliance with Section 8.1, enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(a) Subject the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to Section 4.6(b)an existing standstill or similar restriction;
(b) the Company has been, E&C covenants that it will not acceptand continues to be, approve, recommend or enter into any agreement, understanding or arrangement in respect of compliance with its obligations under this Article 6;
(c) the Company has delivered to the Purchaser a Superior Proposal Notice;
(other than d) the Company has provided the Purchaser a confidentiality copy of the proposed definitive agreement permitted for the Superior Proposal;
(e) at least four (4) 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, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 6.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) if the Purchaser has offered to amend this Agreement and the Arrangement under Section 6.4(2), the Board of Directors has determined in good faith, after consultation with the Company’s outside legal advisors and financial advisers, that such Acquisition Proposal continues to constitute a Superior Proposal compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 4.5(d6.4(2);
(h) unless:the Board of Directors has determined in good faith, after consultation with the Company’s outside legal advisors that it is necessary for the Board of Directors to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(i) E&C has complied prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 8.2(d)(i) and pays the Break Fee pursuant to Section 8.3.
(2) During the Matching Period, or such longer period as the Company may in its obligations sole and absolute discretion approve in writing for such purpose:
(a) the Board of Directors shall review in good faith any offer made by the Purchaser under Section 4.5 6.4(1)(f) to amend the terms of this Agreement and the other provisions of this Article 4 and has provided Parent with Arrangement in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a copy of all material documentation relating Superior Proposal ceasing to the be a Superior Proposal; and
(iib) a period (the “Response Period”) Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of five Business Days shall have elapsed from this Agreement and the date on which Parent received both a copy of Arrangement as would enable the Superior Proposal together with written notice from E&C that the Board of Directors determined, subject only to compliance with this Section 4.6, to accept, approve recommend or enter into a binding agreement Purchaser to proceed with the Superior Proposal.
(b) During the Response Period, Parent will have the right, but not the obligation, to offer to amend the terms of the Arrangement. The Board of Directors will review any transactions contemplated by this Agreement on such proposal by Parent to amend the terms of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine whether the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent to be amendedamended terms. If the Board of Directors does not so determinedetermines that such Acquisition Proposal would cease to be a Superior Proposal, the Board of Directors will Company shall promptly reaffirm its recommendation of so advise the Arrangement Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement are necessary to proceed with the Superior Proposal. Notwithstanding give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(c3) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders securityholders of the Company or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 6.4, and Parent the Purchaser shall be afforded a new Response four (4) Business Day Matching Period from the later of the date on which the Purchaser received the Superior Proposal Notice and a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) The Board of Directors shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board of Directors determines that a proposed amendment to the terms of this Agreement as contemplated under Section 6.4(2) would result in respect an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal advisors with a reasonable opportunity to review the form and content of each any such Acquisition Proposalpress release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(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 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 ten (10) Business Days after the scheduled date of the Company Meeting.
Appears in 1 contract
Right to Match. (a1) Subject to Section 4.6(b7.2(2), E&C Certicom covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement agreement in respect of a Superior an Acquisition Proposal (other than a confidentiality non-disclosure and standstill agreement permitted by Section 4.5(d7.1(4)) nor withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Acquiror the approval or recommendation of the Arrangement, nor accept, approve or recommend any Acquisition Proposal unless:
(ia) E&C an Acquisition Proposal has been made that the Board determines in good faith constitutes a Superior Proposal;
(b) Certicom has complied with its obligations under Section 4.5 7.1 and the other provisions of this Article 4 and 7;
(c) Certicom has provided Parent Acquiror with a copy of notice in writing that there is a Superior Proposal together with all material documentation relating to comprising the Superior Proposal; and, including any value (including a range of value, if any) in financial terms that the Board has in consultation with its financial advisors determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(iid) a period (the “Response Period”) of five Business Days shall have elapsed from the date on which Parent the Acquiror received both a copy the entirety of the documentation set forth in the prior paragraph, and, if Acquiror has proposed to amend the terms of the Arrangement in accordance with Subsection 7.2(2), the Board shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that the Acquisition Proposal is a Superior Proposal together compared to the terms of the Arrangement after giving effect to any offer to amend the terms of the Arrangement made by the Acquiror in accordance with written notice from E&C that Section 7.2(2);
(e) Certicom terminates this Arrangement Agreement pursuant to Section 8.2(1)(e); and
(f) Certicom has previously, or concurrently will have, paid to the Board of Directors determined, subject only to compliance with this Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with Acquiror the Superior ProposalTermination Fee.
(b2) During the Response Period, Parent the Acquiror will have the right, but not the obligation, to offer to amend the terms of the Arrangement, and Certicom shall co-operate with the Acquiror with respect thereto, including negotiating in good faith with the Acquiror to enable the Acquiror to make such adjustments to the terms and conditions of this Arrangement Agreement and the Arrangement as the Acquiror deems appropriate and as would enable the Acquiror to proceed with the Arrangement and any related transactions on such adjusted terms. The Board of Directors will review in good faith any such proposal offer by Parent the Acquiror to amend the terms of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders Certicom Shareholders, to determine whether the Acquisition Proposal to which Parent the Acquiror is responding would be a Superior Proposal when assessed against the Arrangement as it is proposed by Parent the Acquiror has offered to be amendedamend it. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or and enter into an agreement, understanding or arrangement amended Arrangement Agreement with Acquiror reflecting Acquiror’s offer to proceed with amend the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling and holding terms 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 continueArrangement.
(c3) If Certicom provides Acquiror with notice under Section 7.2(1) on a date that is less than five Business Days before the date of the Special Meeting, subject to applicable Laws, Certicom shall postpone or adjourn the Special Meeting to a date that is at least five Business Days but not more than 10 Business Days after the scheduled date of the Special Meeting.
(4) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders holders of Certicom Shares shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 7.2 and Parent the Acquiror shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 1 contract
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval the Board may (based upon, amongst other things, the recommendation of the Special Committee), make a Change in Recommendation, if and only if:
(a) Subject the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to Section 4.6(b)an existing confidentiality, E&C covenants that it will not acceptstandstill, approvenon-disclosure, recommend non-solicitation or enter into any similar agreement, understanding restriction or arrangement in respect covenant with the Company or any of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:its Subsidiaries;
(ib) E&C the Company has complied been, and continues to be, in compliance with its obligations under Section 4.5 Article 5;
(c) the Company or its Representatives have delivered to the Purchaser a written notice of the determination of the 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 Board to make a Change in Recommendation including a notice as to the value in financial terms that the Board has ascribed to any non-cash consideration offered under the Superior Proposal (the “Superior Proposal Notice”);
(d) 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 (including any financing documents) provided to the Company in connection therewith;
(e) at least five (5) full 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 the other provisions of this Article 4 and has provided Parent with date on which the Purchaser received a copy of all material documentation relating the materials referred to in Section 5.4(1)(d);
(f) during any Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(3), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; and
(g) after the Matching Period, the Board has determined (based upon, amongst other things, the recommendation of the Special committee) in good faith (i) after consultation with its financial advisor(s) and outside legal counsel, 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(3)) and (ii) a period (the “Response Period”) of five Business Days shall have elapsed from the date on which Parent received both a copy of the Superior Proposal together after consultation with written notice from E&C its outside legal counsel, that the failure by the Board of Directors determined, subject only to compliance make a Change in Recommendation would be inconsistent with this Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with the Superior Proposalits fiduciary duties.
(b2) For greater certainty, notwithstanding any Change in Recommendation in accordance with Section 5.4(1), the Company shall cause the Company Meeting to occur and the Arrangement Resolution to be put to the Shareholders thereat for consideration in accordance with this Agreement, 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 in accordance with its terms.
(3) During the Response Matching Period, Parent will have or such longer period as the rightCompany may approve in writing for such purpose: (a) the Board (and the Special Committee) shall, but not in consultation with the obligationCompany’s financial advisors and outside legal counsel, to review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement. The Board of Directors will review any Arrangement in order to determine whether such proposal by Parent would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to amend be a Superior Proposal; and (b) the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine whether the Acquisition Proposal to which Parent is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines (based upon, amongst other things, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement Special Committee) that such Acquisition Proposal would cease to proceed with the be a Superior Proposal. Notwithstanding , the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(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 the Securityholders Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent the Purchaser shall be afforded a new Response full five (5) Business Day Matching Period from the later of the date on which the Purchaser received the Superior Proposal Notice for the new Superior Proposal and the date on which the Purchaser received all of the materials referred to in Section 5.4(1)(d) with respect to such new Superior Proposal.
(5) The Board and the Special Committee shall promptly, and in any event within three (3) Business Days from the Purchaser’s request to do so, reaffirm the Board Recommendation and the Special Committee Recommendation, as applicable, by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 5.4(3) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its outside legal counsel.
(6) If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than five (5) Business Days before the Company Meeting, the Company shall be entitled to, and the Company shall upon request by the Purchaser, postpone the Company Meeting to a date that is not more than 10 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.
(7) Nothing contained in this Agreement shall (i) prohibit the Board from 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 that it determines is not a Superior Proposal, provided that the Company shall provide 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 make all reasonable amendments as requested by the Purchaser and its counsel; (ii) prohibit the 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 Laws, 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, or (b) complying with Item 1012(a) of Regulation M-A under the Exchange Act; or (iii) prohibit the Company or the Board from calling and/or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the BCBCA or taking any other action to the extent ordered or otherwise mandated by a court of competent jurisdiction in accordance with Law; provided, however, in each case that, notwithstanding that the Board shall be permitted to make such Acquisition Proposaldisclosure, the Board shall not be permitted to make a Change in Recommendation other than as permitted by Section 5.4(1).
Appears in 1 contract
Sources: Arrangement Agreement (Telus Corp)
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approval, the Board may, subject to compliance with Article 7, authorize the Company to enter into an Alternate Agreement with respect to such Superior Proposal, if and only if:
(a) Subject to Section 4.6(b), E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a the Person making the Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(ib) E&C the Company has complied been, and continues to be, in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 5;
(c) the Company has delivered to the Purchaser a written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board to authorize the Company to enter into such Alternate Agreement with respect to such Superior Proposal, together with 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 Notice”);
(d) the Company has provided Parent with the Purchaser a copy of the proposed Alternate Agreement for the Superior Proposal and all material documentation relating supporting materials, including any financing documents supplied to the Superior Proposal; andCompany in connection therewith;
(iie) a period at least 10 Business Days (the “Response Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which Parent the Purchaser received both a copy of the Superior Proposal together with written notice from E&C that Notice and the Board date on which the Purchaser received all of Directors determined, subject only to compliance with this the materials set forth in Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with the Superior Proposal.5.4(1)(d);
(bf) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Matching Period, the Board (i) has determined in good faith, after consultation with its outside legal counsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement. The Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)) and (ii) has determined in good faith, after consultation with its outside legal counsel, that it is necessary for the Board to authorize the Company to enter into an Alternate Agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties; and
(h) prior to or concurrent with entering into of Directors will such an Alternate Agreement, the Company terminates the Agreement pursuant to Section 7.2(1)(c)(ii) and pays to Purchaser the Termination Fee.
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Board shall review any such proposal offer made by Parent the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders 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 Parent is responding would be a Superior Proposal when assessed against Proposal; and (b) the Company shall, and shall cause its financial and legal advisors to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines that such Acquisition Proposal would cease to be a Superior Proposal, the Board of Directors will Company shall promptly reaffirm its recommendation of so advise the Arrangement Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement are necessary to proceed with the Superior Proposal. Notwithstanding give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 and Parent shall be afforded a new Response Period in respect of each such Acquisition Proposal.
Appears in 1 contract
Right to Match. (1) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution in accordance with the Interim Order, the Board may make a Change in Recommendation and/or, subject to compliance with Section 8.2(3), enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(a) Subject to Section 4.6(b), E&C covenants that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a the Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unless:
(i) E&C has complied did not result from the breach of the Company’s obligations under this Article 5 and the Company continues to be in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 and 5;
(b) the Company has provided Parent with delivered to the Purchaser a copy of all material documentation relating to any proposed agreement in respect of the Superior Proposal; and;
(iic) the Company has delivered to the Purchaser written notice of the determination of the Board that the relevant Acquisition Proposal constitutes a period Superior Proposal, and of the intention of the Board to make a Change in Recommendation and/or enter into such definitive agreement with respect to such Superior Proposal (the “Response PeriodSuperior Proposal Notice”);
(d) of at least five (5) Business Days shall have elapsed from the date that is the later of the date on which Parent the Purchaser received both the Superior Proposal Notice and the date on which the Purchaser received a copy of the proposed definitive agreement for the Superior Proposal together with written notice from E&C that the Board of Directors determined, subject only to compliance with this Section 4.6, to accept, approve recommend or enter into a binding agreement to proceed with Company (the Superior Proposal.“Matching Period”);
(be) During the Response during any Matching Period, Parent will have the right, Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(f) after the Matching Period, the 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. The Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)) and (ii) has determined in good faith, after consultation with its outside legal counsel and financial advisors, that the failure by the Board of Directors will to make a Change in Recommendation and/or authorize the Company to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(g) prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Termination Fee pursuant to Section 8.2(3).
(2) During the Matching Period, or such longer period as the Company may, in its sole discretion, approve in writing for such purpose: (a) the Board shall review any such proposal offer made by Parent the Purchaser under Section 5.4(1)(d) to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders Arrangement in good faith in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to which Parent is responding would be a Superior Proposal when assessed against Proposal; and (b) the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable the Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determinedetermines that such Acquisition Proposal would cease to be a Superior Proposal, the Board of Directors will Company shall promptly reaffirm its recommendation of so advise the Arrangement Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept or enter into an agreement, understanding or arrangement are necessary to proceed with the Superior Proposal. Notwithstanding give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(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 the Securityholders holders of Common Shares or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent the Purchaser shall be afforded a five day Matching Period from the date on which the Purchaser received the Superior Proposal Notice with respect to the new Response Period Superior Proposal from the Company.
(4) At the written request of the Purchaser, the Board shall reaffirm the Board Recommendation by press release if the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in respect an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of each any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser.
(5) If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than 3 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 3 Business Days after the scheduled date of the Company Meeting, as directed by the Purchaser, acting reasonably, 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) The Company shall advise the Company Subsidiaries and their respective Representatives of the prohibitions set out in this Article 5 and any violation of the restrictions set forth in this Article 5 by the Company, the Company Subsidiaries or their respective Representatives is deemed to be a breach of this Article 5 by the Company.
(7) Nothing contained in this Article 5 shall prohibit the Board from:
(a) responding through a directors’ circular or otherwise as required by Law to an Acquisition Proposal, provided that the Company shall provide 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 make all reasonable amendments as requested by the Purchaser and its counsel; or
(b) calling and/or holding a meeting of Common Shareholders requisitioned by Common Shareholders in accordance with the BCBCA or 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.
Appears in 1 contract
Sources: Arrangement Agreement (Merus Labs International Inc.)
Right to Match. (a1) Subject If Corporation receives an Acquisition Proposal that constitutes a Superior Proposal prior to Section 4.6(b)receipt of the Required Shareholder Approval, E&C covenants that it will not accept, the Board (or any special committee thereof) may approve, recommend or enter into any agreementa definitive agreement with respect to such Acquisition Proposal, understanding or arrangement make a Change in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 4.5(d)) unlessRecommendation, if and only if:
(ia) E&C the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing standstill or similar restriction;
(b) Corporation has complied been, and continues to be, in compliance with its obligations under Section 4.5 and the other provisions of this Article 4 5;
(c) Corporation has delivered to Purchaser a written notice of the determination of the Board (or any committee thereof) that such Acquisition Proposal constitutes a Superior Proposal and has provided Parent of the intention of the Board (or any special committee thereof) to approve, recommend or enter into a definitive agreement with respect to such Superior Proposal, together with a copy of all material documentation relating such definitive agreement (including any ancillary agreements and any financing documents supplied to the Superior Proposal; and
(iiCorporation in connection therewith) a period (the “Response Superior Proposal Notice”);
(d) at least five Business Days (the “Matching Period”) of five Business Days shall have elapsed from the date that is the later of the date on which Parent Purchaser received both the Superior Proposal Notice and a copy of the proposed definitive agreement for the Superior Proposal together with written notice from E&C that the Board of Directors 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.Corporation;
(be) During the Response during any Matching Period, Parent will have Purchaser has had the right, opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(f) if Purchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2), the 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 compared to the terms of the Arrangement. The Arrangement as proposed to be amended by Purchaser under Section 5.4(2);
(g) the Board has determined in good faith, after consultation with Corporation’s outside legal counsel, that the failure of Directors will the Board to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; and
(h) prior to or concurrently with entering into such definitive agreement, Corporation terminates this Agreement pursuant to Section 7.2(1)(c)(ii) [Superior Proposal] and pays the Termination Fee pursuant to Section 8.2.
(2) During the Matching Period, or such longer period as Corporation may approve (in its sole discretion) in writing for such purpose: (a) 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, (b) the Board (or any special committee thereof) shall review any such proposal offer made by Parent Purchaser to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders 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 Parent is responding would be a Superior Proposal when assessed against Proposal, and (c) Corporation shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as it is proposed would enable Purchaser to proceed with the transactions contemplated by Parent to be amendedthis Agreement on such amended terms. If the Board of Directors does not so determine, the Board of Directors will promptly reaffirm its recommendation of the Arrangement as amended. If the Board of Directors does so determine, E&C may approve, recommend, accept (or enter into an agreement, understanding or arrangement any special committee thereof) determines that such Acquisition Proposal would cease to proceed with the be a Superior Proposal. Notwithstanding , Corporation shall promptly so advise Purchaser and Corporation and Purchaser shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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.
(c3) Each successive material amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 5.4, and Parent Purchaser shall be afforded a new Response five-Business Day Matching Period from the date on which Purchaser received the Superior Proposal Notice for the new Superior Proposal from Corporation.
(4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal (or amendment thereto) which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in respect an Acquisition Proposal no longer being a Superior Proposal. Corporation shall provide Purchaser and its legal counsel with a reasonable opportunity to review the form and content of each any such Acquisition Proposalpress release and shall make all reasonable amendments to such press release as requested by Purchaser and its legal counsel.
(5) If Corporation provides a Superior Proposal Notice to Purchaser after a date that is less than ten Business Days before the Meeting, Corporation shall be entitled to and shall upon request from Purchaser 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) Notwithstanding any Change in Recommendation, unless this Agreement has been earlier terminated in accordance with Section 7.2, this Agreement shall be submitted to the Shareholders for the purpose of voting on the Arrangement Resolution and nothing contained in this Agreement shall be deemed to relieve Corporation of such obligation.
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Sources: Arrangement Agreement (Neovasc Inc)
Right to Match. (a) Subject to Section 4.6(b6.2(b), E&C covenants the Company agrees that it will not accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Superior an Acquisition Proposal (other than a confidentiality agreement permitted by Section 4.5(d6.1(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) E&C the Board of Directors determines that the Acquisition Proposal constitutes a Superior Proposal;
(ii) the Company has complied with its obligations under Section 4.5 and the all other provisions of this Article 4 6 and has provided Parent the Offeror with a copy of all material documentation the Acquisition Proposal (including, if applicable, a copy of any proposed agreement relating to the Superior such Acquisition Proposal; and);
(iiiii) a period (the “Response Period”) of five (5) Business Days shall have elapsed from the later of (A) the date on which Parent the Offeror received both a copy of the Superior Proposal together with written notice from E&C the Board of Directors that the Board of Directors determined, subject only to compliance with this Section 4.66.2, to accept, approve approve, recommend or enter into a binding agreement to proceed with the Superior Proposal and (B) the date the Offeror received a copy of such Acquisition Proposal;
(iv) after the Response Period, the Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal continues to constitute a Superior Proposal; and
(v) the Company concurrently terminates this Agreement pursuant to Section 8.1(g) and has paid or concurrently pays to the Offeror the Termination Payment pursuant to Section 6.3(a)(ii).
(b) During the Response Period, Parent the Offeror will have the right, but not the obligation, to offer to amend in writing the terms of this Agreement and the ArrangementOffer. The Company agrees that, if requested by the Offeror, it will negotiate with the Offeror in good faith to amend the terms of this Agreement and the Offer. The Board of Directors will review any such proposal by Parent written amendment to amend determine, in good faith in the terms exercise of the Arrangement, including an increase in, or modification of, the consideration to be received by the Securityholders to determine its fiduciary duties whether the Acquisition Proposal to which Parent the Offeror is responding would be a Superior Proposal when assessed against the Arrangement Offer as it is proposed by Parent the Offeror to be amended. If the Board of Directors does not so determine, the Board of Directors will promptly cause the Company to enter into an amendment to this Agreement reflecting the offer by the Offeror to amend the terms of the Offer and upon the execution by the Parties of such amendment will reaffirm its approval and recommendation in respect of the Arrangement Offer, as so amended. If the Board of Directors does so determine, E&C the Company may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. Notwithstanding the foregoing, E&C’s obligations pursuant to this Agreement, including with respect to the calling 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 to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Securityholders Shareholders shall constitute a new Acquisition Proposal for the purposes of this Section 4.6 6.2 and Parent the Offeror shall be afforded a new Response Period in respect of each such Acquisition Proposal.
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