Common use of Right to Match Clause in Contracts

Right to Match. For so long as not less than $1,000,000 of Obligations under the Purchased Debenture remain outstanding, if the Company receives an Acquisition Proposal in respect of which the Company Board determines, in its good faith judgment, after receiving the advice of its outside legal counsel and financial advisor(s) and after taking into account all the terms and conditions of the Acquisition Proposal, including all financial and regulatory aspects of such proposal, would, if consummated in accordance with its terms (but without assuming away any risk of non-completion), be fair to the Company Shareholders and in the best interests of the Company, the Company Board may authorize the Company to enter into a definitive agreement with respect to such Acquisition Proposal, if and only if: (a) the Company has delivered to Archerwill a written notice of the intention of the Company Board to approve, accept, endorse, recommend or enter into a definitive agreement with respect to the Acquisition Proposal and notice as to the value in financial terms that the Company Board has, in consultation with its financial advisor(s) and/or any valuator or independent valuator, determined should be ascribed to any non-cash consideration offered under the Acquisition Proposal (a “Proposal Notice”); (b) the Company has provided Archerwill with a copy of the proposed definitive agreement for the Acquisition Proposal, together with all materials related to any financing required for such proposal and any valuation of non-cash consideration; and (c) at least 15 Business Days have elapsed from the date that is the later of (A) the date on which Archerwill received the Proposal Notice and (B) the date on which Archerwill received all of the materials set forth in Section 2.1(b) (the “Response Period”).

Right to Match. For so long as not less than $1,000,000 of Obligations under the Purchased Debenture remain outstanding, if (1) If the Company receives an Acquisition Proposal in respect of which that constitutes a Superior Proposal prior to the Company Board determines, in its good faith judgment, after receiving the advice of its outside legal counsel and financial advisor(s) and after taking into account all the terms and conditions approval of the Acquisition Proposal, including all financial and regulatory aspects of such proposal, would, if consummated Arrangement Resolution in accordance with its terms (but without assuming away any risk of non-completion), be fair to the Company Shareholders and in the best interests of the CompanyInterim Order, the Company Board may may, subject to compliance with Article 7 and Section 8.2, authorize the Company to enter into a definitive agreement with respect to such Acquisition ProposalProposal or make a Change in Recommendation, if and only if: (ai) such Acquisition Proposal did not result from a breach by the Company of its obligations under Section 5.1 and Section 5.2; (ii) the Company has delivered to Archerwill 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 Company Board to approve, accept, endorse, recommend or enter into a such definitive agreement or make a Change in Recommendation with respect to the such Acquisition Proposal and notice as to the value in financial terms that the Company Board has, in consultation with its financial advisor(s) and/or any valuator or independent valuatoradvisors, determined should be ascribed to any non-cash consideration offered under the Acquisition Superior Proposal (a “Superior Proposal Notice”); (biii) the Company has provided Archerwill the Purchaser with a copy of the proposed definitive agreement for the Acquisition Superior Proposal, together with all materials related to any financing required for such proposal and any valuation of non-cash consideration; and; (civ) at least 15 five Business Days have elapsed from the date that is the later of (A) the date on which Archerwill the Purchaser received the Superior Proposal Notice and (B) the date on which Archerwill the Purchaser received all of the materials set forth in Section 2.1(b5.4(1)(iii) (the “Response Matching Period”); (v) during any Matching Period, the Purchaser has 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; (vi) if the Purchaser has offered to amend this Agreement and the Arrangement under 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 compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2); and (vii) prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 7.2(1)(iii)(b) 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: (i) the Board shall review any offer made by the Purchaser under Section 5.4(1)(v) to amend the terms of this Agreement and the Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and (ii) if the Board determines that the Acquisition Proposal previously determined to constitute a Superior Proposal would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms; provided, however, that in the event that the Acquisition Proposal is an offer, proposal or inquiry under subsection (i) of the definition of Acquisition Proposal, then: (i) the Purchaser shall not have the right to make an offer to amend the terms of this Agreement and the Arrangement to constitute an acquisition by the Purchaser of all or substantially all of the assets of the Company rather than the acquisition of all of the outstanding Common Shares; and (ii) the Company shall not be required to negotiate to amend the terms of this Agreement and the Arrangement to constitute an acquisition by the Purchaser of all or substantially all of the assets of the Company rather than the acquisition of all of the outstanding Common Shares. (3) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and the Purchaser shall be afforded an additional three Business Day Matching Period from the date on which the Purchaser received the Superior Proposal Notice and all other documents and materials required to be provided to the Purchaser pursuant to Section 5.4(1)(1)(iii).

Right to Match. For so long as not less than $1,000,000 of Obligations under the Purchased Debenture remain outstanding, if (1) If the Company receives an a Company Acquisition Proposal in respect that constitutes a Superior Proposal prior to the approval of which the Arrangement Resolution by the Company Board determines, in its good faith judgment, after receiving the advice of its outside legal counsel and financial advisor(s) and after taking into account all the terms and conditions of the Acquisition Proposal, including all financial and regulatory aspects of such proposal, would, if consummated in accordance with its terms (but without assuming away any risk of non-completion), be fair to the Company Shareholders and in the best interests of the CompanyShareholders, the Company Board may, or may authorize cause the Company to to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement with respect to such Acquisition Superior Proposal, if and only if: (a) the Company has been, and continues to be, in compliance with its obligations under this Article 5; (b) the Company or its Representatives have delivered to Archerwill the Purchaser a written notice of the intention determination of the Company Board that it has received a Superior Proposal and of the intention to approve, accept, endorse, recommend or enter into a definitive agreement with respect to the Acquisition Proposal and such Superior Proposal, including a notice as to the value in financial terms that the Company Board has, in consultation with its financial advisor(s) and/or any valuator or independent valuatoradvisors, determined should be ascribed to any non-cash consideration offered under the Acquisition Superior Proposal (a the “Superior Proposal Notice”); (bc) the Company has or its Representatives have provided Archerwill with to the Purchaser a copy of the any proposed definitive agreement for the Acquisition Superior Proposal, together with all materials related to any financing required for such proposal and any valuation of non-cash consideration; and; (cd) at least 15 five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of (A) the date on which Archerwill the Purchaser received the Superior Proposal Notice and (B) the date on which Archerwill the Purchaser received all a copy of the materials set forth definitive agreement for the Superior Proposal; (e) after the Matching Period, the Company Board has determined in good faith, after consultation with its legal counsel and financial advisors, that such Company Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 2.1(b5.4(2)); and (f) (prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the “Response Period”Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Termination Amount pursuant to Section 8.2(2). (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 to amend the terms of this Agreement and the Arrangement in good faith, after consultation with outside legal and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Company Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior 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 would enable the Purchaser and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the foregoing the Company Board determines that such Company Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. (3) Each successive amendment to any Company Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Company Acquisition Proposal for the purposes of this Section 5.4, provided that the Matching Period in respect of such new Acquisition Proposal shall extend only until the later of the end of the initial five (5) Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice for the new Company Acquisition Proposal. (4) Nothing in this Agreement shall prohibit the Company Board from responding through a directors’ circular or otherwise as required by applicable Securities Laws to a Company Acquisition Proposal that it determines is not a Superior Proposal. Further, nothing in this Agreement shall prevent the Company Board from making any disclosure to the Company Shareholders if the Company Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Company Board or such disclosure is otherwise required under Law; provided, however, that, notwithstanding the Company Board shall be permitted to make such disclosure, the Company Board shall not be permitted to make a Change in 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 (5) Business Days before the Company Meeting, the Company shall be entitled to, and shall upon request from the Purchaser, postpone the Company Meeting to a date that is not more than fifteen (15) Business Days after the scheduled date of the Company Meeting (and, in any event, prior to the Outside Date).

Right to Match. For so long as not less than $1,000,000 of Obligations under the Purchased Debenture remain outstanding, if (1) If the Company receives an Acquisition Proposal in respect of which that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Board may, or may cause the Company Board determinesto make a Change in Recommendation and, in its good faith judgment, after receiving the advice of its outside legal counsel and financial advisor(s) and after taking into account all the terms and conditions of the Acquisition Proposal, including all financial and regulatory aspects of such proposal, would, if consummated in accordance subject to compliance with its terms (but without assuming away any risk of non-completionSection 8.2(3), be fair terminate this Agreement pursuant to the Company Shareholders and Section 7.2(1)(c)(ii) in the best interests of the Company, the Company Board may authorize the Company order to enter into a definitive agreement with respect to such Acquisition Superior Proposal, if and only if: : (a) the Company has been, and continues to be, in compliance with its obligations under Article 5 in all material respects; (b) the Acquisition Proposal did not arise, directly or indirectly, as a result of a violation by the Company of this Article 5 or by the OCM Shareholders of the Company Support and Voting Agreements; (c) the Company or its Representatives have delivered to Archerwill 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 Company Board to approve, accept, endorse, recommend or enter into a such definitive agreement and make a Change in Recommendation, together with respect to a written notice from the Acquisition Proposal and notice as to Board regarding the value in and financial terms that the Company Board hasBoard, in consultation with its financial advisor(s) and/or any valuator or independent valuatoradvisors, has determined should be ascribed to any non-cash consideration offered under the such Acquisition Proposal (a the “Superior Proposal Notice”); ; (bd) the Company has or its Representatives have provided Archerwill with to the Purchaser a copy of the proposed definitive agreement for the Acquisition Proposal, together with all materials related to Superior Proposal (including any financing required for commitments or other documents containing material terms and conditions of such proposal and any valuation of non-cash considerationSuperior Proposal); and (ce) at least 15 five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of (A) the date on which Archerwill the Purchaser received the Superior Proposal Notice and (B) the date on which Archerwill the Purchaser received all and a copy of the materials set forth proposed definitive agreement for the Superior Proposal from the Company (including any financing commitments or other documents containing material terms and conditions of such Superior Proposal); (f) during any Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 2.1(b5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (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 “Response terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)); and (h) the Board has determined, in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Change in Recommendation and terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties. (2) During the Matching Period”, or such longer period as the Company may approve in writing for such purpose: (a) the Board shall, in good faith, review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. (3) Each successive amendment 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 Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, provided that the Matching Period in respect of such new Acquisition Proposal shall extend only until the later of the end of the initial five (5) Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice for the new Superior Proposal and a copy of the proposed definitive agreement for the new Superior Proposal (including any financing commitments or other documents containing material terms and conditions of such Superior Proposal). (4) If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than ten (10) Business Days before the Company Meeting or if the Company Meeting is to be held during a Matching Period, 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 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. (5) Nothing contained in this Agreement shall prohibit the Board from making any disclosure to any securityholders of the Company prior to the Company Meeting, if, in the good faith judgment of the Board, after consultation with outside legal counsel, failure to make such disclosure would be inconsistent with the Board’s exercise of its fiduciary duties or disclosure is otherwise required by law; provided that the Purchaser and its counsel shall be provided with a reasonable opportunity to review and comment on any such disclosure and the Board shall give reasonable consideration to such comments. In addition, nothing contained in this Agreement shall prohibit the Board from responding, within the time and in the manner required by applicable Securities Laws, to any Acquisition Proposal by take-over or tender or exchange offer made for the Shares that it determines is not a Superior Proposal; provided that the Purchaser and its counsel shall be provided with a reasonable opportunity to review and comment on any such response and the Board shall give reasonable consideration to such comments. Nothing contained in this Section 5.4(5) shall (a) permit the Board to make a Change in Recommendation other than as permitted by Section 5.4 and (b) limit in any way (i) the rights of the Purchaser pursuant to Section 7.2(1)(d)(ii) or (ii) the obligations of the Company contained in this Agreement, including the obligation to convene and hold the Company Meeting in accordance with Section 2.3.

Right to Match. For so long as not less than $1,000,000 of Obligations under the Purchased Debenture remain outstanding, if (1) If the Company receives an a Company Acquisition Proposal in respect that constitutes a Superior Proposal prior to the approval of which the Arrangement Resolution by the Company Board determines, in its good faith judgment, after receiving the advice of its outside legal counsel and financial advisor(s) and after taking into account all the terms and conditions of the Acquisition Proposal, including all financial and regulatory aspects of such proposal, would, if consummated in accordance with its terms (but without assuming away any risk of non-completion), be fair to the Company Shareholders and in the best interests of the CompanyShareholders, the Company Board may, or may authorize cause the Company to to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement with respect to such Acquisition Superior Proposal, if and only if: (a) the Company has been, and continues to be, in compliance with its obligations under this Article 5; (b) the Company or its Representatives have delivered to Archerwill the Purchaser a written notice of the intention determination of the Company Board that it has received a Superior Proposal and of the intention to approve, accept, endorse, recommend or enter into a definitive agreement with respect to the Acquisition Proposal and such Superior Proposal, including a notice as to the value in financial terms that the Company Board has, in consultation with its financial advisor(s) and/or any valuator or independent valuatoradvisors, determined should be ascribed to any non-cash consideration offered under the Acquisition Superior Proposal (a the “Superior Proposal Notice”); (bc) the Company has or its Representatives have provided Archerwill with to the Purchaser a copy of the any proposed definitive agreement for the Acquisition Superior Proposal, together with all materials related to any financing required for such proposal and any valuation of non-cash consideration; and; (cd) at least 15 five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of (A) the date on which Archerwill the Purchaser received the Superior Proposal Notice and (B) the date on which Archerwill the Purchaser received all a copy of the materials set forth definitive agreement for the Superior Proposal; (e) after the Matching Period, the Company Board has determined in good faith, after consultation with its legal counsel and financial advisors, that such Company Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 2.1(b5.4(2)); and (f) (prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the “Response Period”Company terminates this Agreement pursuant to Section 7.2(1)(c)(ii) and pays the Termination Amount pursuant to Section 8.2(2). (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 to amend the terms of this Agreement and the Arrangement in good faith, after consultation with outside legal and financial advisors, in order to determine whether such proposal would, upon acceptance, result in the Company Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior 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 would enable the Purchaser and/or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the foregoing the Company Board determines that such Company Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. (3) Each successive amendment to any Company Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Company Acquisition Proposal for the purposes of this Section 5.4, provided that the Matching Period in respect of such new Acquisition Proposal shall extend only until the later of the end of the initial five (5) Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice for the new Company Acquisition Proposal.