Common use of Alternative Transaction Structure Clause in Contracts

Alternative Transaction Structure. In the event that (a) the IRS notifies Remainco or any of its Subsidiaries that the IRS will not issue the Private Letter Ruling or the Transactions will not qualify for the Intended Tax Treatment or (b) in Remainco’s reasonable determination, the IRS would not reasonably be expected to issue the Private Letter Ruling, the Parties shall negotiate in good faith to structure the Transactions in an alternative tax-free manner (such structure, the “Alternative Transaction Structure”); provided that in no event shall a Party be required to agree to any term or condition that is materially detrimental to such Party and its Subsidiaries, taken as a whole. If the Alternative Transaction Structure is adopted in accordance with the preceding sentence, (i) all relevant provisions of this Agreement shall be amended mutatis mutandis to refer to, and give effect to, the Alternative Transaction Structure, (ii) without limiting the generality of the foregoing clause (i), all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Alternative Transaction Structure and, in any case, in accordance with Section 8.8 and (iii) the Parties shall, and shall cause their respective Subsidiaries to, (x) amend and restate this Agreement and, if necessary or advisable to effect the Alternative Transaction Structure, the Separation and Distribution Agreement and any other Transaction Documents to reflect the foregoing and (y) execute, acknowledge and deliver any assurances, documents or instruments of transfer, conveyance, assignment and assumption reasonably requested by the other Party to effect the Alternative Transaction Structure. If the Alternative Transaction Structure is not agreed upon (or the Parties decide not to pursue the Alternative Transaction Structure), then the Parties shall, subject to the satisfaction or waiver of the conditions set forth in ARTICLE IX, consummate the Transactions as soon as practicable after June 15, 2023 (the “Delayed RMT”) and cooperate with one another in good faith, and use reasonable best efforts, to furnish appropriate representation letters to enable counsel to Remainco to issue an opinion on the qualification of the Delayed RMT for the Intended Tax Treatment and, if Remainco wishes to obtain an IRS ruling regarding the qualification of the Delayed RMT for the Intended Tax Treatment, the Parties will cooperate with one another in good faith, and use reasonable best efforts, to obtain such ruling. In connection with any Delayed RMT, (A) all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Delayed RMT and, in any case, in accordance with Section 8.8 and (B) the Parties shall, and shall cause their respective Subsidiaries to, amend this Agreement, the Separation and Distribution Agreement and any other Transaction Documents, if necessary or advisable to effect the Delayed RMT.

Alternative Transaction Structure. (1) At the request of the Acquiror, the Company shall use commercially reasonable efforts to assist the Acquiror to successfully implement and complete any alternative transaction structure that would result in the Acquiror acquiring, directly or indirectly, all of the Certicom Shares (including, for greater certainty, an Acquisition Proposal) so long as such an alternative transaction (a) would provide Certicom Shareholders and Optionholders with a financial result equivalent to or better than, on an after-tax basis, the Arrangement and the Company and/or the Board shall, if considered necessary or desirable, have received a fairness opinion with respect thereto from TD Securities Inc. or another financial advisor, (b) would not prejudice the Company’s securityholders, (c) would not impede or materially delay the consummation of the Arrangement, (d) is otherwise on terms and conditions no more onerous than the Arrangement and this Arrangement Agreement, (e) would not require the Company to obtain any regulatory approval and (f) would not require the Company to take any action in contravention of any applicable Law, the Charter Documents or any material provision of any material agreement to which it is a party. (2) In the event that (a) the IRS notifies Remainco or any of its Subsidiaries that the IRS will not issue the Private Letter Ruling or the Transactions will not qualify for the Intended Tax Treatment or (b) in Remainco’s reasonable determination, the IRS would not reasonably be expected to issue the Private Letter Ruling, the Parties shall negotiate in good faith to structure the Transactions in an alternative tax-free manner (such structure, the “Alternative Transaction Structure”); provided that in no event shall a Party be required to agree to any term or condition that is materially detrimental to such Party and its Subsidiaries, taken as a whole. If the Alternative Transaction Structure is adopted following application made in accordance with the preceding sentence, (i) all relevant provisions terms of this Agreement shall be amended mutatis mutandis to refer to, and give effect toArrangement Agreement, the Alternative Transaction StructureCourt declines to grant the Interim Order substantially in the form of Schedule B, (ii) without limiting the generality upon request of the foregoing clause (i)Company, the Acquiror shall make an offer to acquire all filings, notices and reports with of the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Alternative Transaction Structure and, in any case, outstanding Certicom Shares by way of a take-over bid undertaken in accordance with Section 8.8 and Securities Laws (iii) the Parties shall“TO Bid”), and shall cause their respective Subsidiaries to, (x) amend and restate this Agreement and, if necessary or advisable to effect the Alternative Transaction Structure, the Separation and Distribution Agreement and any other Transaction Documents to reflect the foregoing and (y) execute, acknowledge and deliver any assurances, documents or instruments of transfer, conveyance, assignment and assumption reasonably requested by the other Party to effect the Alternative Transaction Structure. If the Alternative Transaction Structure is not agreed upon (or the Parties decide not to pursue the Alternative Transaction Structure), then the Parties shall, subject to Section 2.16(3), not be obliged to undertake the satisfaction or waiver Arrangement. If the Acquiror is required by the Company to undertake the TO Bid, the Company shall make commercially reasonable efforts to obtain from all the directors and officers of the conditions set forth Company lock-up agreements containing customary provisions in ARTICLE IXfavour of the Acquiror including, consummate without limitation, agreements by such directors and officers to (i) cancel each Certicom Option held by the Transactions as soon as practicable after June 15applicable director or officer the exercise price of which Certicom Option is less than or equal to the Cash Proceeds Per Share (such Certicom Option, 2023 (the an “Delayed RMTOut-of-Money Option”) and cooperate (ii) exercise each Certicom Option (other than Out-of-Money Options) held by the applicable director or officer and deposit the Certicom Shares issued upon such exercise, together with one another in good faith, and use reasonable best effortsany other Certicom Shares held by such director or officer, to furnish appropriate representation letters the TO Bid, each such lock-up agreement to enable counsel to Remainco to issue an opinion on be terminable at the qualification option of the Delayed RMT for director and officer, as applicable, in the Intended Tax Treatment and, if Remainco wishes to obtain an IRS ruling regarding the qualification event of termination of the Delayed RMT for the Intended Tax Treatment, agreement between the Parties will cooperate with one another referred to in good faith, and use reasonable best efforts, to obtain such ruling. Section 2.16(3). (3) In connection with any Delayed RMT, (A) all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as event that the case may be, reflecting the Delayed RMT and, in any case, transaction structure is modified in accordance with Section 8.8 2.16(1) or (2), the relevant provisions of this Arrangement Agreement shall be modified as necessary in order that they shall apply with full force and (B) effect, mutatis mutandis, but with the adjustments necessary to reflect the revised transaction structure, and the Parties shall, hereto shall execute and shall cause their respective Subsidiaries to, amend this Agreement, the Separation deliver an agreement in writing giving effect to and Distribution Agreement evidencing such amendments as may be reasonably required as a result of such modifications and any other Transaction Documents, if necessary or advisable to effect the Delayed RMTadjustments.

Alternative Transaction Structure. In the event that (a) the IRS notifies Remainco or any of its Subsidiaries that the IRS will not issue the Private Letter Ruling or the Transactions will not qualify for the Intended Tax Treatment Treatment, or (b) in Remainco’s the reasonable determinationdetermination of each of the Parties, the IRS would not reasonably be expected to issue the Private Letter Ruling, the Parties shall negotiate in good TABLE OF CONTENTS​​​ faith to structure the Transactions in an alternative tax-free manner (such structure, the “Alternative Transaction Structure”); provided provided, that in no event shall a Party be required to agree to any term or condition that is materially detrimental to such Party and its Subsidiaries, taken as a whole. If the Alternative Transaction Structure is adopted in accordance with the preceding sentence, (i) all relevant provisions of this Agreement shall be amended mutatis mutandis to refer to, and give effect to, the Alternative Transaction Structure, (ii) without limiting the generality of the foregoing clause (i), all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Alternative Transaction Structure and, in any case, in accordance with Section 8.8 8.8, and (iii) the Parties shall, and shall cause their respective Subsidiaries to, (xA) amend and restate this Agreement and, if necessary or advisable to effect the Alternative Transaction Structure, the Separation and Distribution Agreement and any other Transaction Documents to reflect the foregoing foregoing, and (yB) execute, acknowledge and deliver any assurances, documents or instruments of transfer, conveyance, assignment and assumption reasonably requested by the other Party to effect the Alternative Transaction Structure. If the Alternative Transaction Structure is not agreed upon (or the Parties decide not to pursue the Alternative Transaction Structure), then the Parties shall, subject to the satisfaction or waiver of the conditions set forth in ARTICLE IX, consummate the Transactions as soon as practicable after June 15, 2023 that date which is the thirtieth (30th) day prior to the Outside Date (the “Delayed RMT”) and cooperate with one another in good faith, and use commerically reasonable best efforts, efforts to furnish appropriate representation letters to enable counsel to Remainco to issue an opinion on the qualification of the Delayed RMT for the Intended Tax Treatment and, if Remainco wishes to obtain an IRS ruling regarding the qualification of the Delayed RMT for the Intended Tax Treatment, the Parties will cooperate with one another in good faith, and use commerically reasonable best efforts, to obtain such ruling. In connection with any Delayed RMT, (A1) all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Delayed RMT and, in any case, in accordance with Section 8.8 8.8, and (B2) the Parties shall, and shall cause their respective Subsidiaries to, amend this Agreement, the Separation and Distribution Agreement and any other Transaction Documents, if necessary or advisable to effect the Delayed RMT.

Alternative Transaction Structure. In Notwithstanding the foregoing or anything in this Agreement to the contrary, in the event that ten (a10) Business Days prior to the IRS notifies Remainco Closing, the Company and the trustee under the Convertible Notes Indenture have not each executed a supplemental indenture to the Convertible Notes Indenture in accordance with the terms thereof amending the terms thereof to permit the consummation of the Second Merger at the Second Effective Time without giving rise to a breach of, or any default under, any provision of its Subsidiaries the Convertible Notes Indenture, then Parent may irrevocably elect the Alternative Transaction Structure (as defined below) (by written notice to the Company at least one (1) Business Day prior to the anticipated Closing Date, a “Revised Structure Notice”; provided that if the IRS will Closing does not issue occur on the Private Letter Ruling or anticipated Closing Date, Parent may revoke such Revised Structure Notice and, at a later date, irrevocably elect to deliver a new written notice at least one (1) Business Day prior to the Transactions will not qualify for the Intended Tax Treatment or (b) in Remainco’s reasonable determinationactual Closing Date), and upon delivery of such Revised Structure Notice, the IRS would not reasonably structure of the Second Merger shall be expected to issue modified such that for all purposes hereunder the Private Letter RulingSecond Merger shall consist of the Surviving Corporation merging with and into Parent, with the Parties shall negotiate separate existence of the Surviving Corporation ceasing and Parent continuing as the surviving corporation in good faith to structure the Transactions in an alternative tax-free manner Second Merger (such structure, the “Alternative Transaction Structure”); provided that in no event shall a Party be required to agree to any term or condition that is materially detrimental to such Party and its Subsidiaries, taken as a whole. If the Alternative Transaction Structure is adopted in accordance with the preceding sentence, (i) all relevant references to “Merger Sub II” or “Surviving LLC” herein shall be deemed deleted from this Agreement (or replaced with “Parent,” solely to the extent the context requires such replacement to give effect to the Alternative Transaction Structure), and any representations, warranties, covenants or agreements of Merger Sub II or the Surviving LLC, as applicable, under this Agreement shall forthwith become null and void and there shall be no liability on the part of Parent, Merger Sub I, Merger Sub II or the Surviving LLC for any representations, warranties, covenants or agreements of Merger Sub II under this Agreement and (ii) all other provisions of this Agreement shall be amended mutatis mutandis to refer to, and give given effect to, the Alternative Transaction Structure, (ii) without limiting the generality of the foregoing clause (i), all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Alternative Transaction Structure and, in any case, in accordance with Section 8.8 and (iii) the Parties shall, and shall cause their respective Subsidiaries to, (x) amend continue in full force and restate effect and the Merger and the other transactions contemplated by this Agreement and, if necessary or advisable to effect the Alternative Transaction Structure, the Separation and Distribution Agreement and any other Transaction Documents to reflect the foregoing and shall (y) execute, acknowledge and deliver any assurances, documents or instruments of transfer, conveyance, assignment and assumption reasonably requested by the other Party to effect the Alternative Transaction Structure. If the Alternative Transaction Structure is not agreed upon (or the Parties decide not to pursue the Alternative Transaction Structure), then the Parties shall, subject to the satisfaction or waiver of the terms and conditions set forth in ARTICLE IX, consummate the Transactions as soon as practicable after June 15, 2023 (the “Delayed RMT”hereof) and cooperate with one another in good faith, and use reasonable best efforts, to furnish appropriate representation letters to enable counsel to Remainco to issue an opinion on the qualification of the Delayed RMT for the Intended Tax Treatment and, if Remainco wishes to obtain an IRS ruling regarding the qualification of the Delayed RMT for the Intended Tax Treatment, the Parties will cooperate with one another in good faith, and use reasonable best efforts, to obtain such ruling. In connection with any Delayed RMT, (A) all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Delayed RMT and, in any case, in accordance with Section 8.8 and (B) the Parties shall, and shall cause their respective Subsidiaries to, amend this Agreement, the Separation and Distribution Agreement and any other Transaction Documents, if necessary or advisable to effect the Delayed RMToccur.

Alternative Transaction Structure. In the event that (a) Each Party agrees that, at any time prior to the IRS notifies Remainco initial filing of the Registration Statement / Proxy Statement, and notwithstanding anything to the contrary herein or in any Ancillary Document, upon the written request of either Pathfinder to the Company or the Company to Pathfinder (an “Alternative Transaction Structure Notice”), the Parties shall, on the terms and subject to the conditions of this Section 7.19, use, and cause their respective Affiliates (including in the case of the Company, Parent and Parent GP) to use, reasonable best efforts to effectuate the transactions contemplated by this Agreement via a transaction or series of related transactions in which Pathfinder (a) would directly or indirectly acquire or otherwise purchase in a tax-free reorganization all of the Equity Securities of the Company in exchange for the same class of Pathfinder common shares or common stock, as applicable, to be held by the existing shareholders of Pathfinder Shares immediately following the Closing or, in the case of any Company Equity Awards or Parent Equity Awards, comparable equity awards in Pathfinder (whether via a reverse subsidiary merger or any similar transaction or series of its Subsidiaries that the IRS will not issue the Private Letter Ruling or the Transactions will not qualify for the Intended Tax Treatment or related transactions), (b) except as otherwise agreed by the Company and Pathfinder (such agreement not to be unreasonably withheld, conditioned or delayed), would become a Delaware corporation in Remainco’s reasonable determination, the IRS would not reasonably be expected to issue the Private Letter Ruling, the Parties shall negotiate in good faith to structure the Transactions in an alternative a tax-free manner reorganization with a single class common stock and (such structure, c) would be listed on the Designated Exchange immediately following the Closing (the “Alternative Transaction Structure”); provided that in no event shall a Party be required to agree to any term or condition that is materially detrimental to such Party and its Subsidiaries, taken as a whole. If the Alternative Transaction Structure is adopted in accordance with the preceding sentence, . (ib) all relevant provisions of this Agreement shall be amended mutatis mutandis to refer to, and give effect to, the Alternative Transaction Structure, (ii) without Without limiting the generality of the foregoing clause (i)Section 7.19, all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the upon receipt of an Alternative Transaction Structure andNotice, in any case, in accordance with Section 8.8 and (iii) each of the Parties shall, and shall cause their respective Subsidiaries toAffiliates (including in the case of the Company Parent and Parent GP) and pertinent Representatives, (x) amend to reasonably cooperate, work in good faith to and restate this Agreement and, if otherwise promptly take all reasonably necessary or advisable to effect actions in furtherance of the Alternative Transaction Structure, including (a) by as promptly as practicable preparing, negotiating, executing and delivering any amendments, amendment and restatements, modifications or supplements to this Agreement or any of the Separation and Distribution Agreement and any other Transaction Ancillary Documents to reflect the foregoing Alternative Transaction Structure on terms and conditions that are substantially similar to the terms and conditions of this Agreement or such Ancillary Document with respect to economics, governance and risk allocation, with such other changes as are reasonably necessary or advisable, as determined in good faith by the Company and Pathfinder (such determination not to be unreasonably withheld, conditioned or delayed by either the Company or Pathfinder), to give effect to the Alternative Transaction Structure (including those that may be necessary or reasonably advisable by reason of the fact that Pathfinder (and not the Company) will be listed on the Designated Exchange immediately following the Closing), (ii) using reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents in light of the Alternative Transaction Structure (including any reasonably necessary or advisable filings or Consents under Antitrust Laws), with the costs incurred in connection with any such Consents, for the avoidance of doubt, being borne by the Parties in the manner provided in Section 4.2(a), and (yiii) executeotherwise using reasonable best efforts to take, acknowledge or cause to be taken, all such other actions and deliver any assurancesto do, documents or instruments of transfercause to be done, conveyance, assignment all such other things reasonably necessary or advisable to facilitate and assumption reasonably requested by the other Party to effect effectuate the Alternative Transaction Structure. If . (c) Notwithstanding the Alternative Transaction Structure is not agreed upon (foregoing or the Parties decide not to pursue the Alternative Transaction Structure), then the Parties shall, subject anything to the satisfaction contrary herein, (i) for the avoidance of doubt, in no event shall this Section 7.19 require any party or waiver any Affiliate of any party to agree to any change to the Company Pre-Closing Equity Value or consideration allocable to direct or indirect holders of Equity Securities, (ii) in no event shall any of the conditions covenants, agreements or obligations set forth in ARTICLE IX, consummate this Section 7.19 require the Transactions as soon as practicable after June 15, 2023 Pathfinder Board (or any committee thereof) or Company Board (or any committee thereof) to approve or otherwise take any action that it believes is inconsistent with its duties under applicable Law and (iii) in the “Delayed RMT”) and cooperate with one another in good faith, and use reasonable best efforts, to furnish appropriate representation letters to enable counsel to Remainco to issue an opinion on the qualification of the Delayed RMT for the Intended Tax Treatment and, if Remainco wishes to obtain an IRS ruling regarding the qualification of the Delayed RMT for the Intended Tax Treatment, the Parties will cooperate with one another in good faith, and use reasonable best efforts, to obtain such ruling. In connection event that this Section 7.19 conflicts with any Delayed RMTother covenant or agreement in Article IV, (A) all filings, notices then such covenant or agreement set forth in this Section 7.19 shall govern and reports with control solely to the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Delayed RMT and, in any case, in accordance with Section 8.8 and (B) the Parties shall, and shall cause their respective Subsidiaries to, amend this Agreement, the Separation and Distribution Agreement and any other Transaction Documents, if necessary or advisable to effect the Delayed RMTextent of such conflict.

Alternative Transaction Structure. In the event that (a) the IRS notifies Remainco or any of its Subsidiaries that the IRS will not issue the Private Letter Ruling or the Transactions will not qualify for the Intended Tax Treatment Treatment, or (b) in Remainco’s the reasonable determinationdetermination of each of the Parties, the IRS would not reasonably be expected to issue the Private Letter Ruling, the Parties shall negotiate in good faith to structure the Transactions in an alternative tax-free manner (such structure, the “Alternative Transaction Structure”); provided provided, that in no event shall a Party be required to agree to any term or condition that is materially detrimental to such Party and its Subsidiaries, taken as a whole. If the Alternative Transaction Structure is adopted in accordance with the preceding sentence, (i) all relevant provisions of this Agreement shall be amended mutatis mutandis to refer to, and give effect to, the Alternative Transaction Structure, (ii) without limiting the generality of the foregoing clause (i), all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Alternative Transaction Structure and, in any case, in accordance with Section 8.8 8.8, and (iii) the Parties shall, and shall cause their respective Subsidiaries to, (xA) amend and restate this Agreement and, if necessary or advisable to effect the Alternative Transaction Structure, the Separation and Distribution Agreement and any other Transaction Documents to reflect the foregoing foregoing, and (yB) execute, acknowledge and deliver any assurances, documents or instruments of transfer, conveyance, assignment and assumption reasonably requested by the other Party to effect the Alternative Transaction Structure. If the Alternative Transaction Structure is not agreed upon (or the Parties decide not to pursue the Alternative Transaction Structure), then the Parties shall, subject to the satisfaction or waiver of the conditions set forth in ARTICLE IX, consummate the Transactions as soon as practicable after June 15, 2023 that date which is the thirtieth (30th) day prior to the Outside Date (the “Delayed RMT”) and cooperate with one another in good faith, and use commerically reasonable best efforts, efforts to furnish appropriate representation letters to enable counsel to Remainco to issue an opinion on the qualification of the Delayed RMT for the Intended Tax Treatment and, if Remainco wishes to obtain an IRS ruling regarding the qualification of the Delayed RMT for the Intended Tax Treatment, the Parties will cooperate with one another in good faith, and use commerically reasonable best efforts, to obtain such ruling. In connection with any Delayed RMT, (A1) all filings, notices and reports with the SEC and any other Governmental Entity shall be made or amended, as the case may be, reflecting the Delayed RMT and, in any case, in accordance with Section 8.8 8.8, and (B2) the Parties shall, and shall cause their respective Subsidiaries to, amend this Agreement, the Separation and Distribution Agreement and any other Transaction Documents, if necessary or advisable to effect the Delayed RMT.