Common use of Right to Match Clause in Contracts

Right to Match. 7.3.1 Tahoe covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless: (a) Tahoe has complied with its obligations under Section 7.2 and Section 7.3 and has provided Pan American with a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration); (b) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (i) the date on which Pan American receives written notice from the Tahoe Board that the Tahoe 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, and (ii) the date Pan American receives a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration) from Tahoe that the Tahoe Board 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; (c) if Pan American has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe Board shall have determined in good faith, after consultation with the Tahoe Financial Advisor and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments; (d) Tahoe shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii); and (e) Tahoe shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American (or as Pan American may direct by notice in writing) the Termination Fee. 7.3.2 During the Response Period, Pan American shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe shall negotiate in good faith with Pan American to enable Pan American to make such amendments to the terms of 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) Business Days (the “Review Period”) of any such offer by Pan American to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe Board shall review and determine whether the Acquisition Proposal to which Pan American is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American to be amended. Such determination to be made by the Tahoe Board shall be communicated to Pan American by the end of the Review Period. If the Tahoe Board determines that the Acquisition Proposal to which Pan American is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b) by the prompt issuance of a press release to that effect. 7.3.3 Where Tahoe has provided Pan American notice pursuant to Section 7.3.1(b) less than seven (7) calendar days prior to the Tahoe Meeting, if requested to do so by Pan American, Tahoe shall postpone or adjourn the Tahoe 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 Tahoe Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe Meeting has been adjourned. 7.3.4 Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Pan American shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal. 7.3.5 Notwithstanding any of the provisions of Section 7.2 and 7.3, the Tahoe 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 Tahoe Shares that it determines is not a Superior Proposal; provided that: (a) Pan American and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Board shall give reasonable consideration to such comments; and (b) notwithstanding that the Tahoe Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Board shall not be permitted to make a Tahoe Change in Recommendation unless the provisions of Section 7.2 and 7.3 are met.

Right to Match. 7.3.1 Tahoe MAG covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless: (a) Tahoe MAG has complied with its obligations under Section 7.2 and Section 7.3 and has provided Pan American with a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash considerationconsideration (other than publicly traded securities listed on a major stock exchange), a written notice from the Tahoe MAG Board setting out the value or range of values in financial terms that the Tahoe MAG Board, in consultation with the Tahoe MAG Financial AdvisorAdvisors, determined in good faith should be ascribed to such non-cash consideration); (b) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (i) the date on which Pan American receives written notice from the Tahoe MAG Board that the Tahoe MAG 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, and (ii) the date Pan American receives a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash considerationconsideration (other than publicly traded securities listed on a major stock exchange), a written notice from the Tahoe MAG Board setting out the value or range of values in financial terms that the Tahoe MAG Board, in consultation with the Tahoe MAG Financial AdvisorAdvisors, determined in good faith should be ascribed to such non-cash consideration) from Tahoe MAG that the Tahoe MAG Board 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; (c) if Pan American has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe MAG Board shall have determined in good faith, after consultation with the Tahoe MAG Financial Advisor Advisors and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments; (d) Tahoe MAG shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii8.2.1(d)(i); and (e) Tahoe MAG shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American (or as Pan American may direct by notice in writing) the Termination Fee. 7.3.2 During the Response Period, Pan American shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe MAG shall negotiate in good faith with Pan American to enable Pan American to make such amendments to the terms of 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) Business Days (the “Review Period”) of any such offer by Pan American to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe MAG Board shall review and determine whether the Acquisition Proposal to which Pan American is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American to be amended. Such determination to be made by the Tahoe MAG Board shall be communicated to Pan American by the end of the Review Period. If the Tahoe MAG Board determines that the Acquisition Proposal to which Pan American is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe MAG shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe MAG Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b2.5(b) by the prompt issuance of a press release to that effect. 7.3.3 Where Tahoe MAG has provided Pan American notice pursuant to Section 7.3.1(b) less than seven (7) calendar days Business Days prior to the Tahoe MAG Meeting, MAG may, or if requested to do so by Pan American, Tahoe shall MAG shall, postpone or adjourn the Tahoe MAG Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days Business Days after the date of such notice, or in the event that the date of such postponed or adjourned MAG Meeting would be on a date prior to the end of a Review Period, then the MAG Meeting shall instead be postponed to a date that is no less than five (5) Business Days following the end of the Review Period; provided, however, that in the event that the Tahoe MAG Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe MAG Meeting has been adjourned. 7.3.4 Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Pan American shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal. 7.3.5 Notwithstanding any of the provisions of Section 7.2 and 7.3, the Tahoe 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 Tahoe Shares that it determines is not a Superior Proposal; provided that: (a) Pan American and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Board shall give reasonable consideration to such comments; and (b) notwithstanding that the Tahoe Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Board shall not be permitted to make a Tahoe Change in Recommendation unless the provisions of Section 7.2 and 7.3 are met.

Right to Match. 7.3.1 Tahoe covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless: (a) Tahoe has complied with its obligations under Section 7.2 and Section 7.3 and has provided Pan American with a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration); (b) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (i) the date on which Pan American receives written notice from the Tahoe Board that the Tahoe 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, and (ii) the date Pan American receives a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration) from Tahoe that the Tahoe Board 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; (c) if Pan American has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe Board shall have determined in good faith, after consultation with the Tahoe Financial Advisor and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments; (d) Tahoe shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii); and (e) Tahoe shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American (or as Pan American may direct by notice in writing) the Termination Fee. 7.3.2 During the Response Period, Pan American shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe shall negotiate in good faith with Pan American to enable Pan American to make such amendments to the terms of 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) Business Days (the “Review Period”) of any such offer by Pan American to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe Board shall review and determine whether the Acquisition Proposal to which Pan American is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American to be amended. Such determination to be made by the Tahoe Board shall be communicated to Pan American by the end of the Review Period. If the Tahoe Board determines that the Acquisition Proposal to which Pan American is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b) by the prompt issuance of a press release to that effect. 7.3.3 Where Tahoe has provided Pan American notice pursuant to Section 7.3.1(b) less than seven (7) calendar days prior to the Tahoe Meeting, if requested to do so by Pan American, Tahoe shall postpone or adjourn the Tahoe 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 Tahoe Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe Meeting has been adjourned. 7.3.4 Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Pan American shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal. 7.3.5 Notwithstanding any of the provisions of Section 7.2 and 7.3, the Tahoe 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 Tahoe Shares that it determines is not a Superior Proposal; provided that: (a) Pan American and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Board shall give reasonable consideration to such comments; and (b) notwithstanding that the Tahoe Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Board shall not be permitted to make a Tahoe Change in Recommendation unless the provisions of Section 7.2 and 7.3 are met.

Right to Match. 7.3.1 Tahoe 1.1.1 MAG covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless: (a) Tahoe MAG has complied with its obligations under Section 7.2 and Section 7.3 and has provided Pan American with a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash considerationconsideration (other than publicly traded securities listed on a major stock exchange), a written notice from the Tahoe MAG Board setting out the value or range of values in financial terms that the Tahoe MAG Board, in consultation with the Tahoe MAG Financial AdvisorAdvisors, determined in good faith should be ascribed to such non-cash consideration); (b) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (i) the date on which Pan American receives written notice from the Tahoe MAG Board that the Tahoe MAG 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, and (ii) the date Pan American receives a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash considerationconsideration (other than publicly traded securities listed on a major stock exchange), a written notice from the Tahoe MAG Board setting out the value or range of values in financial terms that the Tahoe MAG Board, in consultation with the Tahoe MAG Financial AdvisorAdvisors, determined in good faith should be ascribed to such non-cash consideration) from Tahoe MAG that the Tahoe MAG Board 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; (c) if Pan American has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe MAG Board shall have determined in good faith, after consultation with the Tahoe MAG Financial Advisor Advisors and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments; (d) Tahoe MAG shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii8.2.1(d)(i); and (e) Tahoe MAG shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American (or as Pan American may direct by notice in writing) the Termination Fee. 7.3.2 1.1.2 During the Response Period, Pan American shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe MAG shall negotiate in good faith with Pan American to enable Pan American to make such amendments to the terms of 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) Business Days (the “Review Period”) of any such offer by Pan American to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe MAG Board shall review and determine whether the Acquisition Proposal to which Pan American is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American to be amended. Such determination to be made by the Tahoe MAG Board shall be communicated to Pan American by the end of the Review Period. If the Tahoe MAG Board determines that the Acquisition Proposal to which Pan American is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe MAG shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe MAG Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b2.5(b) by the prompt issuance of a press release to that effect. 7.3.3 1.1.3 Where Tahoe MAG has provided Pan American notice pursuant to Section 7.3.1(b) less than seven (7) calendar days Business Days prior to the Tahoe MAG Meeting, MAG may, or if requested to do so by Pan American, Tahoe shall MAG shall, postpone or adjourn the Tahoe MAG Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days Business Days after the date of such notice, or in the event that the date of such postponed or adjourned MAG Meeting would be on a date prior to the end of a Review Period, then the MAG Meeting shall instead be postponed to a date that is no less than five (5) Business Days following the end of the Review Period; provided, however, that in the event that the Tahoe MAG Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe MAG Meeting has been adjourned. 7.3.4 1.1.4 Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Pan American shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal. 7.3.5 Notwithstanding any of the provisions of Section 7.2 and 7.3, the Tahoe 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 Tahoe Shares that it determines is not a Superior Proposal; provided that: (a) Pan American and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Board shall give reasonable consideration to such comments; and (b) notwithstanding that the Tahoe Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Board shall not be permitted to make a Tahoe Change in Recommendation unless the provisions of Section 7.2 and 7.3 are met.