Right to Match. 7.3.1 Each Party covenants that it will not accept, approve, endorse or recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than, for clarity, a confidentiality and standstill agreement permitted by Section 7.2.3) or make a Change in Recommendation as a result thereof unless: (a) the Party receiving such proposal (the “Receiving Party”) has complied with its obligations under Section 7.2 and has provided the other Party (the “Responding Party”) with a copy of the Superior Proposal and all related documentation described in Section 7.2.4; and (b) a period (the “Response Period”) of four business days has elapsed from the date that is the later of: (x) the date on which the Responding Party receives written notice from the Receiving Party that it has determined, subject only to compliance with this Section 7.3, to accept, approve, endorse, recommend or enter into a binding agreement to proceed with such Superior Proposal; and (y) the date the Responding Party receives a copy of the Superior Proposal and all related documents described in Section 7.2.4. 7.3.2 During the Response Period, the Responding Party will have the right, but not the obligation, to offer to amend this Agreement and the Plan of Arrangement, including modification of the consideration. The Receiving Party shall review any such offer by the Responding Party to amend this Agreement and the Plan of Arrangement to determine whether the Acquisition Proposal to which the Responding Party is responding would continue to be a Superior Proposal when assessed against the Arrangement as it is proposed in writing by the Responding Party to be amended. If the Receiving Party determines that the Acquisition Proposal no longer constitutes a Superior Proposal, when assessed against this Agreement and the Plan of Arrangement as they are proposed to be amended by the Responding Party, the Receiving Party will cause it to enter into an amendment to this Agreement with the Responding Party incorporating the amendments to the Agreement and Plan of Arrangement as set out in the written offer to amend, and will promptly reaffirm its recommendation of the Arrangement by the prompt issuance of a press release to that effect. If the Receiving Party determines that the Acquisition Proposal continues to be a Superior Proposal, it may recommend that holders of its securities accept such Superior Proposal provided that before doing so it terminates this Agreement and pays the Termination Fee pursuant to Section 8.2.1(c)(ii) or Section 8.2.1(d)(ii), as applicable, in order to accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. 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 holders of the Receiving Party’s securities shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and the Responding Party 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 within ten days before the Aris Meeting or the GCM Meeting, as applicable, the Receiving Party has provided the Responding Party with a notice under Section 7.3.1(a) hereof, an Acquisition Proposal has been publicly disclosed or announced, and the Response Period has not elapsed, then, subject to applicable Laws, at the Responding Party’s request, the Receiving Party will postpone or adjourn the Aris Meeting or the GCM Meeting, as applicable, to a date acceptable to the Responding Party, acting reasonably, which shall not be later than ten days after the scheduled date of the Aris Meeting or the GCM Meeting, as applicable, and shall, in the event that the Parties amend the terms of this Agreement pursuant to Section 7.3.2, ensure that the details of such amended Agreement are communicated to the shareholders of the Receiving Party prior to the postponed meeting or resumption of the adjourned meeting, as the case may be.
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Right to Match. 7.3.1 Each Party E▇▇ covenants that it will shall not approve, accept, approveendorse, endorse or recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than, for clarity, than a confidentiality and standstill agreement permitted by Section 7.2.3) or make a Change in Recommendation as a result thereof unless:
(a) the Party receiving such proposal (the “Receiving Party”) E▇▇ has complied with its obligations under Section 7.2 and this Section 7.3 and has provided the other Party (the “Responding Party”) Gold Royalty with a copy of the Superior Proposal and all related documentation described (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the E▇▇ Board setting out the value or range of values in Section 7.2.4; andfinancial terms that the E▇▇ Board, in consultation with the E▇▇ Financial Advisors, determined in good faith should be ascribed to such non-cash consideration);
(b) a period (the “Response Period”) of four business days five (5) Business Days has elapsed from the date that is the later of: of (xi) the date on which the Responding Party Gold Royalty receives written notice from the Receiving Party E▇▇ Board that it the E▇▇ Board has determined, subject only to compliance with this Section 7.3, to approve, accept, approve, endorse, recommend or enter into a binding written agreement with respect to proceed with such the Superior Proposal; , and (yii) the date the Responding Party Gold Royalty 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 E▇▇ Board setting out the value or range of values in financial terms that the E▇▇ Board, in consultation with the E▇▇ Financial Advisors, determined in good faith should be ascribed to such non-cash consideration) from E▇▇ that the E▇▇ 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 Gold Royalty 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 E▇▇ Board shall have determined in good faith, after consultation with the E▇▇ Financial Advisors and all related documents described outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(d) E▇▇ shall have terminated this Agreement pursuant to Section 8.2.1(d)(i); and
(e) E▇▇ shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Gold Royalty (or as Gold Royalty may direct by notice in Section 7.2.4writing) the Termination Fee.
7.3.2 During the Response Period, the Responding Party will Gold Royalty 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, E▇▇ shall negotiate in good faith with Gold Royalty to enable Gold Royalty 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 Gold Royalty to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of of, the consideration. The Receiving Party aggregate Consideration, the E▇▇ Board shall review any such offer by the Responding Party to amend this Agreement and the Plan of Arrangement to determine whether the Acquisition Proposal to which the Responding Party Gold Royalty 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 in writing by the Responding Party Gold Royalty to be amended. Such determination to be made by the E▇▇ Board shall be communicated to Gold Royalty by the end of the Review Period. If the Receiving Party E▇▇ Board determines that the Acquisition Proposal no longer constitutes to which Gold Royalty is responding would not continue to be a Superior Proposal, Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Gold Royalty to be amended by the Responding Partyamended, the Receiving Party will cause it to E▇▇ shall enter into an amendment to this Agreement with to give effect to such amendments and the Responding Party incorporating the amendments to the Agreement and Plan of Arrangement as set out in the written offer to amend, and will E▇▇ 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. If the Receiving Party determines that the Acquisition Proposal continues to be a Superior Proposal, it may recommend that holders of its securities accept such Superior Proposal .
7.3.3 Where E▇▇ has provided that before doing so it terminates this Agreement and pays the Termination Fee Gold Royalty notice pursuant to Section 8.2.1(c)(ii7.3.1(b) less than seven (7) calendar days prior to the E▇▇ Meeting, if requested to do so by Gold Royalty, E▇▇ shall, postpone or Section 8.2.1(d)(ii)adjourn the E▇▇ Meeting to a date that is not less than five (5) Business Days and not more than ten (10) Business Days after the date of such notice; provided, however, that in the event that the E▇▇ Meeting is so postponed or adjourned, the Meeting Deadline and the Outside Date shall be extended by the same number of days as applicable, in order to accept the E▇▇ Meeting has been postponed or enter into an agreement, understanding or arrangement to proceed with the Superior Proposaladjourned.
7.3.3 7.3.4 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 holders of the Receiving Party’s securities shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and the Responding Party Gold Royalty shall be afforded a new Response Period and the rights afforded in Section paragraph 7.3.2 in respect of each such Acquisition Proposal.
7.3.4 Where at 7.3.5 Notwithstanding any time within ten days before of the Aris Meeting or the GCM Meeting, as applicableprovisions of Section 7.2 and 7.3, the Receiving Party has E▇▇ 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 E▇▇ Shares that it determines is not a Superior Proposal; provided the Responding Party that:
(a) Gold Royalty and its counsel have been provided with a notice under Section 7.3.1(a) hereof, an Acquisition Proposal has been publicly disclosed or announced, reasonable opportunity to review and comment on any such response and the Response Period has not elapsed, then, subject E▇▇ Board shall give reasonable consideration to applicable Laws, at such comments; and
(b) notwithstanding that the Responding Party’s requestE▇▇ Board may be permitted to respond in the manner set out herein to a take-over bid, the Receiving Party will postpone or adjourn the Aris Meeting or the GCM Meeting, as applicable, to a date acceptable to the Responding Party, acting reasonably, which E▇▇ Board shall not be later than ten days after permitted to make an E▇▇ Change in Recommendation unless the scheduled date provisions of the Aris Meeting or the GCM Meeting, as applicable, Section 7.2 and shall, in the event that the Parties amend the terms of this Agreement pursuant to Section 7.3.2, ensure that the details of such amended Agreement 7.3 are communicated to the shareholders of the Receiving Party prior to the postponed meeting or resumption of the adjourned meeting, as the case may bemet.
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Right to Match. 7.3.1 Each Party covenants that it will (a) Target shall not accept, approve, endorse or endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than, for clarity, than a confidentiality and standstill agreement permitted by Section 7.2.37.2(c)) or make a Change in Recommendation as a result thereof unless:
(ai) the Party receiving such proposal Target has:
(the “Receiving Party”A) has complied with its obligations under Section 7.2 and has 7.2;
(B) provided the other Party (the “Responding Party”) Acquiror with a copy of the Superior Proposal and all related documentation described in Section 7.2.47.2(d); and
(bC) delivered written notice (the “Superior Proposal Notice”) to Acquiror that the Target Board (A) has determined that the Acquisition Proposal is a Superior Proposal, and (B) has determined, subject to compliance with this Section 7.3, to approve or recommend such Superior Proposal and/or that Target enter into a binding agreement with respect to such Superior Proposal, together with a copy of such agreement that is capable of acceptance by Target;
(ii) a period (the “Response Period”) of four five business days has elapsed from the date that is the later of: of (xi) the date on which Acquiror receives the Responding Party receives written notice from the Receiving Party that it has determined, subject only to compliance with this Section 7.3, to accept, approve, endorse, recommend or enter into a binding agreement to proceed with such Superior Proposal; Proposal Notice and (yii) the date the Responding Party Acquiror receives a copy of the Superior Proposal and all related documents documentation described in Section 7.2.47.2(d); and
(iii) Target has complied with the remaining provisions of this Section 7.3.
7.3.2 (b) During the Response Period, the Responding Party Acquiror will have the right, but not the obligation, to offer in writing to amend this Agreement and the Plan of Arrangement, including an increase in, or modification of of, the aggregate consideration. Target shall cooperate with Acquiror with respect to any amendment offer, including negotiating in good faith with Acquiror to enable Acquiror to make such amendments to this Agreement and the Plan of Arrangement as Acquiror deems appropriate as would enable Acquiror to proceed with the transactions contemplated by this Agreement and the Plan of Arrangement on such amended basis. The Receiving Party Target Board shall review any such offer by the Responding Party Acquiror to amend this Agreement and the Plan of Arrangement to determine determine, in good faith in the exercise of its fiduciary duties, whether the Acquisition Proposal to which the Responding Party Acquiror is responding would continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as it is proposed in writing by the Responding Party Acquiror to be amended. If the Receiving Party Target Board determines that the Acquisition Proposal to which Acquiror is responding:
(i) no longer constitutes a Superior Proposal, Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed to be amended by the Responding Partyamended, the Receiving Party will Target Board shall cause it Target to enter into an amendment to this Agreement with the Responding Party Acquiror incorporating the amendments to the Agreement and Plan of Arrangement as set out in the written Acquiror’s offer to amend, and will shall promptly reaffirm its recommendation of the Arrangement by the prompt issuance of a press news release to that effect. If the Receiving Party determines that the Acquisition Proposal ; or
(ii) continues to be a Superior Proposal, it Target may approve and recommend that holders of its securities Target Shares accept such Superior Proposal provided that before doing so it Target terminates this Agreement and concurrently with such termination Target pays the Termination Fee Payment pursuant to Section 8.2.1(c)(ii8.2(a)(iii)(A).
(c) The Target Board shall reaffirm its recommendation of the Arrangement by news release promptly after:
(i) any Acquisition Proposal, which is determined not to be a Superior Proposal, is publicly announced or Section 8.2.1(d)(ii)made, as applicable, promptly after such determination is made;
(ii) the Target Board determines that a proposed amendment to the terms of this Agreement and the Plan of Arrangement would result in order to accept or enter an Acquisition Proposal not being a Superior Proposal and the Parties have entered into an agreementamendment to this Agreement incorporating such amendments; or
(iii) the written request of Acquiror given on or within five business days ending the business day before the Target Meeting, understanding or arrangement and Acquiror and its legal advisors shall be given a reasonable opportunity to proceed with review and comment on the Superior Proposalform and content of any such news release and Target shall incorporate all reasonable comments made by Acquiror and its legal advisors.
7.3.3 (d) If the Target Meeting falls during a Response Period, Target shall continue to take all reasonable steps necessary to hold the Target Meeting as originally scheduled, but may, upon giving notice to Acquiror, postpone the meeting to a date that is no more than two Business Days after the expiry of such Response Period.
(e) Where, at any time before the Target Meeting, Target has provided Acquiror with a Superior Proposal Notice, an Acquisition Proposal has been publicly disclosed or announced and the Response Period has not elapsed, then, subject to applicable laws, at Acquiror’s request, Target will postpone or adjourn the Target Meeting to a date acceptable to Acquiror, acting reasonably.
(f) 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 holders of the Receiving Party’s securities Target Shares shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and the Responding Party Acquiror shall be afforded a new Response Period and the rights afforded in Section 7.3.2 paragraph 7.3(a)(ii) in respect of each such Acquisition Proposal.
7.3.4 Where at any time within ten days before the Aris Meeting or the GCM Meeting, as applicable, the Receiving Party has provided the Responding Party with a notice under Section 7.3.1(a) hereof, an Acquisition Proposal has been publicly disclosed or announced, and the Response Period has not elapsed, then, subject to applicable Laws, at the Responding Party’s request, the Receiving Party will postpone or adjourn the Aris Meeting or the GCM Meeting, as applicable, to a date acceptable to the Responding Party, acting reasonably, which shall not be later than ten days after the scheduled date of the Aris Meeting or the GCM Meeting, as applicable, and shall, in the event that the Parties amend the terms of this Agreement pursuant to Section 7.3.2, ensure that the details of such amended Agreement are communicated to the shareholders of the Receiving Party prior to the postponed meeting or resumption of the adjourned meeting, as the case may be.
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Right to Match. 7.3.1 Each Party covenants that it will (a) Target shall not accept, approve, endorse or endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than, for clarity, than a confidentiality and standstill agreement permitted by Section 7.2.37.2(c)) or make a Change in Recommendation as a result thereof unless:
(ai) the Party receiving such proposal Target has:
(the “Receiving Party”A) has complied with its obligations under Section 7.2 and has 7.2;
(B) provided the other Party (the “Responding Party”) ▇▇▇▇▇▇▇ with a copy of the Superior Proposal and all related documentation described in Section 7.2.47.2(d); and
(bC) delivered written notice (the “Superior Proposal Notice”) to ▇▇▇▇▇▇▇ that, in accordance with Section 7.2, the Target Board
(A) has determined that the Acquisition Proposal is a Superior Proposal, and (B) has determined, subject to compliance with this Section 7.3, to approve or recommend such Superior Proposal and/or that Target enter into a binding agreement with respect to such Superior Proposal, together with a copy of such agreement that is capable of acceptance by Target;
(ii) a period (the “Response Period”) of four business days five Business Days has elapsed from the date that is the later of: of (xi) the date on which ▇▇▇▇▇▇▇ receives the Responding Party receives written notice from the Receiving Party that it has determined, subject only to compliance with this Section 7.3, to accept, approve, endorse, recommend or enter into a binding agreement to proceed with such Superior Proposal; Proposal Notice and (yii) the date the Responding Party ▇▇▇▇▇▇▇ receives a copy of the Superior Proposal and all related documents documentation described in Section 7.2.47.2(d); and
(iii) Target has complied with this Section 7.3.
7.3.2 (b) During the Response Period, the Responding Party ▇▇▇▇▇▇▇ will have the right, but not the obligation, to offer in writing to amend this Agreement and the Plan of Arrangement, including an increase in, or modification of of, the aggregate consideration. Target shall cooperate with ▇▇▇▇▇▇▇ with respect to any amendment offer, including negotiating in good faith with ▇▇▇▇▇▇▇ to enable ▇▇▇▇▇▇▇ to make such amendments to this Agreement and the Plan of Arrangement as ▇▇▇▇▇▇▇ deems appropriate as would enable ▇▇▇▇▇▇▇ to proceed with the transactions contemplated by this Agreement and the Plan of Arrangement on such amended basis. The Receiving Party Target Board shall review any such offer by ▇▇▇▇▇▇▇ that is made before the Responding Party expiry of the Response Period to amend this Agreement and the Plan of Arrangement to determine determine, in good faith in the exercise of its fiduciary duties, whether the Acquisition Proposal to which the Responding Party ▇▇▇▇▇▇▇ is responding would continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as it is proposed in writing by the Responding Party ▇▇▇▇▇▇▇ to be amended. If the Receiving Party Target Board determines that the Acquisition Proposal to which ▇▇▇▇▇▇▇ is responding:
(i) no longer constitutes a Superior Proposal, Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed to be amended by the Responding Partyamended, the Receiving Party will Target Board shall cause it Target to enter into an amendment to this Agreement with the Responding Party ▇▇▇▇▇▇▇ incorporating the amendments to the Agreement and Plan of Arrangement as set out in the written ▇▇▇▇▇▇▇’▇ offer to amend, and will shall promptly reaffirm its recommendation of the Arrangement by the prompt issuance of a press news release to that effect. If the Receiving Party determines that the Acquisition Proposal ; or
(ii) continues to be a Superior Proposal, it Target may approve and recommend that holders of its securities Target Shares accept such Superior Proposal provided that before doing so it Target terminates this Agreement and concurrently with such termination Target pays the Termination Fee Payment pursuant to Section 8.2.1(c)(ii8.2(a)(iii)(A).
(c) The Target Board shall reaffirm its recommendation of the Arrangement by news release promptly after:
(i) the Target Board determines that any Acquisition Proposal that has been publicly announced or Section 8.2.1(d)(ii), as applicable, made is not a Superior Proposal;
(ii) the Target Board determines that a proposed amendment to the terms of this Agreement and the Plan of Arrangement would result in order to accept or enter an Acquisition Proposal not being a Superior Proposal and the Parties have entered into an agreementamendment to this Agreement incorporating such amendments; or
(iii) the written request of ▇▇▇▇▇▇▇ given on or within five Business Days ending the Business Day before the Target Meeting, understanding or arrangement and ▇▇▇▇▇▇▇ and its legal advisors shall be given a reasonable opportunity to proceed with review and comment on the Superior Proposalform and content of any such news release and Target shall incorporate all reasonable comments made by ▇▇▇▇▇▇▇ and its legal advisors.
7.3.3 (d) If the Target Meeting falls during a Response Period, Target shall continue to take all reasonable steps necessary to hold the Target Meeting as originally scheduled, but may, upon giving notice to ▇▇▇▇▇▇▇, postpone the meeting to a date that is no more than two Business Days after the expiry of such Response Period.
(e) Where, at any time before the Target Meeting, Target has provided ▇▇▇▇▇▇▇ with a Superior Proposal Notice, an Acquisition Proposal has been publicly disclosed or announced and the Response Period has not elapsed, then, subject to applicable laws, at ▇▇▇▇▇▇▇’▇ request, Target will postpone or adjourn the Target Meeting to a date acceptable to ▇▇▇▇▇▇▇, acting reasonably.
(f) 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 holders of the Receiving Party’s securities Target Shares shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and the Responding Party ▇▇▇▇▇▇▇ shall be afforded a new Response Period and the rights afforded in Section 7.3.2 7.3(a) in respect of each such Acquisition Proposal.
7.3.4 Where at any time within ten days before the Aris Meeting or the GCM Meeting, as applicable, the Receiving Party has provided the Responding Party with a notice under Section 7.3.1(a) hereof, an Acquisition Proposal has been publicly disclosed or announced, and the Response Period has not elapsed, then, subject to applicable Laws, at the Responding Party’s request, the Receiving Party will postpone or adjourn the Aris Meeting or the GCM Meeting, as applicable, to a date acceptable to the Responding Party, acting reasonably, which shall not be later than ten days after the scheduled date of the Aris Meeting or the GCM Meeting, as applicable, and shall, in the event that the Parties amend the terms of this Agreement pursuant to Section 7.3.2, ensure that the details of such amended Agreement are communicated to the shareholders of the Receiving Party prior to the postponed meeting or resumption of the adjourned meeting, as the case may be.
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Sources: Arrangement Agreement