Company Meeting. (a) Subject to Section 5.8, the Company shall take, in accordance with applicable Law and its Organizational Documents, all action necessary to convene and hold the Company Meeting as promptly as practicable after the date of this Agreement (but, subject to Section 5.4(b), in any event no later than February 19, 2019) to consider and vote upon (i) the Approval Resolution, (ii) the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out in the Company Circular and agreed to by the Parties, acting reasonably, and to cause such votes to be taken. (b) The Company Meeting shall not be postponed, recessed or adjourned by the Company without Purchaser’s prior written consent; provided, that: (i) the Company may postpone, recess or adjourn the Company Meeting, (A) to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance of the Company Meeting, or (B) if as of the time for which the Company Meeting is originally scheduled, as set forth in the Company Circular (the “Original Date”), or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval, so long as in each case that the Company exercises its right under this Section 5.4(b) to postpone, recess or adjourn the Company Meeting, the Company shall have provided prior written notice to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days prior to the Original Date or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess or adjourn the Company Meeting for up to ten Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date. (c) Subject to Section 5.8, the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i). (d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation. (e) The Company shall (i) fix the date of the Company Meeting and the record date of the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting. (f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained. (g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of any postponement, recess or adjournment of the Company Meeting effected pursuant to Section 5.4(b) or (iii) with the prior written consent of Purchaser. (h) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed).
Appears in 2 contracts
Samples: Subscription Agreement (Cronos Group Inc.), Subscription Agreement (Altria Group, Inc.)
Company Meeting. The Company shall:
(a) Subject to Section 5.8, convene and conduct the Company shall take, Meeting in accordance with the Interim Order, the Company’s constating documents and applicable Law Laws as promptly as practicable, but in any event not later than November 1, 2020, and its Organizational Documentsnot adjourn, all action necessary to convene and hold postpone or cancel (or propose the adjournment, postponement or cancellation of) the Company Meeting as promptly as practicable after without the date of this Agreement (but, subject to Section 5.4(b), in any event no later than February 19, 2019) to consider and vote upon (i) the Approval Resolution, (ii) the election prior written consent of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out in the Company Circular and agreed to by the PartiesBuyer, acting reasonably, except as required or permitted under Section 6.04, Section 7.03, or Section 7.04 or as required for quorum purposes (in which case, the Company Meeting shall be adjourned and to cause such votes to be taken.not cancelled) or as required by applicable Laws or a Governmental Entity;
(b) The Company Meeting shall not be postponed, recessed or adjourned by the Company without Purchaser’s prior written consent; provided, that: (i) the Company may postpone, recess or adjourn the Company Meeting, (A) to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance of the Company Meeting, or (B) if as of the time for which the Company Meeting is originally scheduled, as set forth in the Company Circular (the “Original Date”), or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval, so long as in each case that the Company exercises its right under this Section 5.4(b) to postpone, recess or adjourn the Company Meeting, the Company shall have provided prior written notice to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days prior to the Original Date or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess or adjourn the Company Meeting for up to ten Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date.
(c) Subject to Section 5.8, the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, and compliance by the directors and officers of the Company has paid with their fiduciary duties, use its commercially reasonable efforts to Purchaser solicit proxies in favour of the approval of the Arrangement Resolution, including, at the Company’s discretion or Parent if so requested by the Termination Fee Buyer, acting reasonably, using, subject to the Company’s mutual agreement, dealer and proxy solicitation services and co-operating with any Persons engaged by the Buyer to solicit proxies in accordance with Section 6.5(b)favour of the Arrangement Resolution, in provided that if the event thatforegoing is completed at the Buyer’s request, after then the date Buyer shall bear the cost thereof;
(c) as soon as reasonably practicable following the execution of this AgreementAgreement and in any event not later than September 21, 2020, the Company Board effects will convene a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant Board to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to approve the Company Shareholders at Circular;
(d) except for non-substantive communications, provide the Buyer with copies of or access to information regarding the Company Meeting (generated by any dealer or at any postponementproxy solicitation services firm, recess or adjournment thereof) without a recommendation of as requested from time to time by the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation.Buyer in writing;
(e) The Company shall (i) fix consult with the Buyer in fixing the date of the Company Meeting and the record date of the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the CompanyMeeting, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser the Buyer of the Company Meeting and allow Purchaserthe Buyer’s Representatives representatives and legal counsel to attend the Company Meeting.;
(f) The Company agrees (i) to provide Purchaser and its designated Representatives promptly advise the Buyer, at such times as the Buyer may reasonably detailed periodic updates concerning proxy solicitation results request in writing, including, as applicable, on a timely daily basis (including, if requested, promptly providing weekly voting reports and, during on each of the last two weeks 10 Business Days prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to date of the Company Meeting, indicating whether as to the aggregate tally of such date, sufficient proxies to obtain received by the Shareholder Approval have been obtained.Company in respect of the Arrangement Resolution;
(g) Notwithstanding anything promptly advise the Buyer of any material communication (written or oral) from or claims brought by (or threatened to be brought by) any Person in opposition to the contrary in this Agreement, once Arrangement and any purported exercise or withdrawal of Dissent Rights by Company Shareholders;
(h) not change the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting in connection with any adjournment or postponement of the Company Meeting, except as set out in the Company shall not change such record date, Interim Order and unless required by applicable Laws;
(i) required by applicable Lawnot make any payment or settlement offer, (ii) if necessary as a result of or agree to any postponementpayment or settlement with respect to Dissent Rights, recess or adjournment of the Company Meeting effected pursuant to Section 5.4(b) or (iii) with the prior written consent of Purchaser.
(h) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of Purchaser the Buyer; and
(which j) not propose or submit for consideration at the Company Meeting any business other than the Arrangement without the Buyer’s prior written consent, such consent shall not to be unreasonably conditionedwithheld, withheld conditioned or delayed).
Appears in 2 contracts
Samples: Arrangement Agreement (High Tide Inc.), Arrangement Agreement
Company Meeting. The Company shall, as soon as reasonably practicable after the earliest to occur of (x) the U.S. SEC informing the Parent that it has no remaining comments to, or will not review, the Parent Proxy Statement (and the Parent agrees to advise the Company of such matters promptly after the U.S. SEC informs the Parent of such) or (y) the passage of at least ten (10) calendar days (as calculated pursuant to Rule 14a-6 of the U.S. Exchange Act) since the filing of a preliminary Parent Proxy Statement with the U.S. SEC not informing the Parent that it intends to review the Parent Proxy Statement (in either case, “SEC Clearance”):
(a) Subject duly call, give notice of, convene and conduct the Company Meeting (including by virtual means) in accordance with the Interim Order, the Company’s constating documents and applicable Laws as promptly as reasonably practicable, using commercially reasonable efforts to Section 5.8convene and conduct the Company Meeting as soon as practicable, and in any event, within thirty-five (35) days of the receipt of the SEC Clearance (and, in that regard, the Company shall takeabridge, in accordance as necessary, any time period that may be abridged under NI 54-101); provided that the Parent shall cooperate with applicable Law the Company and its Organizational Documentsuse commercially reasonable best efforts to set the record dates for, all action necessary to schedule and convene and hold the Company Meeting as promptly as practicable after and the Parent Meeting on the same dates;
(b) in consultation with the Parent, fix and publish a record date for the purposes of this Agreement determining the Company Securityholders entitled to receive notice of and to vote at the Company Meeting;
(butc) not adjourn, subject to Section 5.4(b)postpone or cancel (or propose or permit the adjournment, in any event no later than February 19, 2019postponement or cancellation of) to consider and vote upon the Company Meeting except (i) the Approval Resolutionas required by applicable Laws or a Governmental Entity, (ii) as required for quorum purposes (in which case the election of meeting shall be adjourned and not cancelled), (iii) if at any time following the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting dissemination of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the CompanyCircular, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out Company reasonably determines in good faith that the Company Circular and agreed to by the Parties, acting reasonably, and to cause such votes Securityholder Approval is unlikely to be taken.
(b) The obtained at the Company Meeting (in which case the meeting shall be adjourned and not be postponed, recessed or adjourned by cancelled); (iv) the Company without PurchaserBoard shall have determined in good faith (after consultation with outside legal counsel) that it is necessary or appropriate to postpone or adjourn the Company Meeting in order to give Company Securityholders sufficient time to evaluate any information or disclosure that the Company has sent or otherwise made available to such holders by issuing a press release, filing materials with the Canadian Securities Authorities or otherwise; (v) as permitted by Section 9.3(b), or (vi) with the Parent’s prior written consent; provided, that: (i) the Company may postpone, recess or adjourn the Company Meeting, (A) to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance of the Company Meeting, or (B) if as of the time for which the Company Meeting is originally scheduled, as set forth in the Company Circular (the “Original Date”), or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval, so long as in each case that the Company exercises its right under this Section 5.4(b) to postpone, recess or adjourn the Company Meeting, the Company shall have provided prior written notice be permitted to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days prior to the Original Date or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess postpone or adjourn the Company Meeting for up pursuant to ten Business Days clause (ii), (iii) and (iv) on no more than two occasions in accordance with Purchaser’s direction. The Company Meeting the aggregate and no such adjournment shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that delay the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y10) more than an aggregate of sixty days from the Original Date prior-scheduled date or (z) to a date that is on or after the fifth (5th) business day preceding the Outside Date.
(c) Subject to Section 5.8, the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).;
(d) Notwithstanding anything to promptly advise the contrary set forth in this AgreementParent as the Parent may reasonably request, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects and at least on a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election daily basis on each of the Purchaser Nominees last ten (10) business days prior to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation.
(e) The Company shall (i) fix the date of the Company Meeting and as to the record date aggregate tally of the proxies received by the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser respect of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting.
(f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of any postponement, recess or adjournment of the Company Meeting effected pursuant to Section 5.4(b) or (iii) with the prior written consent of Purchaser.
(h) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed).Arrangement Resolution;
Appears in 1 contract
Company Meeting. Subject to the terms of this Agreement and (except in respect of Section 2.3(b)) receipt of the Interim Order, the Company shall:
(a) Subject to Section 5.8, convene and conduct the Company shall take, Meeting in accordance with its constating documents, the Interim Order and applicable Law Laws, as soon as reasonably practicable, and its Organizational Documents, all action necessary to convene and hold the Company Meeting as promptly as practicable after the date of this Agreement (but, subject to Section 5.4(b), in any event no later than February 19on or before March 31, 2019) to consider and vote upon (i) the Approval Resolution, (ii) the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out in the Company Circular and agreed to by the Parties, acting reasonably, and to cause such votes to be taken.2022;
(b) The in consultation with the Purchaser, fix and publish a record date for the purposes of determining the Company Shareholders entitled to receive notice of and vote at the Company Meeting shall not be postponed, recessed or adjourned by and give notice to the Purchaser of the Company Meeting;
(c) allow the Purchaser’s representatives and legal counsel to attend the Company Meeting (including by virtual means);
(d) not adjourn, postpone or cancel (or propose or permit the adjournment, postponement or cancellation of) the Company Meeting without the Purchaser’s prior written consent; provided, that: except:
(i) as required for quorum purposes (in which case the Company may postponeMeeting shall be adjourned and not cancelled), recess by Law, by a Governmental Entity or adjourn by a valid Company Shareholder action (which action is not solicited or proposed by the Company Meetingor the Company Board);
(ii) as expressly permitted under Section 5.3(k); or
(iii) for adjournments of not more than ten Business Days in the aggregate for the purposes of attempting to solicit proxies to obtain the Company Shareholder Approval;
(e) unless the Company Board has made the Company Change in Recommendation in accordance with the applicable provisions of this Agreement, use commercially reasonable efforts to solicit proxies in favour of the Arrangement Resolution and against any resolution submitted by any Company Shareholder that is inconsistent with the Arrangement Resolution and the completion of any of the transactions contemplated by this Agreement, including, if so requested by the Purchaser and at the expense of the Purchaser, using the services of proxy solicitation firms to solicit proxies in favour of the approval of the Arrangement Resolution;
(Af) provide the Purchaser with copies of, or access to, information regarding the Company Meeting generated by any proxy solicitation services firm engaged by the Company, as requested from time to time by the Purchaser;
(g) promptly advise the Purchaser as frequently as the Purchaser may reasonably request, and at least on a daily basis on each of the last ten Business Days prior to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance date of the Company Meeting, or (B) if as to the aggregate tally of the time for which proxies received by the Company Meeting is originally scheduledin respect of the Arrangement Resolution;
(h) promptly advise the Purchaser of any written or oral communication from any Company Shareholder in opposition to the Arrangement, as set forth in written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company Circular (in relation to the “Original Date”), or Arrangement and any date that withdrawal of Dissent Rights received by the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person and any written communications sent by or by proxy) to constitute a quorum necessary to conduct the business on behalf of the Company Meeting to any Company Shareholder exercising or purporting to obtain exercise Dissent Rights in relation to the Shareholder Approval, so long as in each case that Arrangement;
(i) provide the Purchaser with an opportunity to review and comment on any written communication sent by or on behalf of the Company exercises its right under this Section 5.4(b) to postponeany Company Shareholder exercising or purporting to exercise Dissent Rights and not make any payment or settlement offer, recess or adjourn the Company Meeting, the Company shall have provided prior written notice agree to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days any payment or settlement prior to the Original Date or any date that Effective Time with respect to Dissent Rights without the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess or adjourn the Company Meeting for up to ten Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business prior written consent of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date.Purchaser;
(cj) Subject to Section 5.8, not change the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation.
(e) The Company shall (i) fix the date of the Company Meeting and the record date of the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting.
(f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of Meeting in connection with any postponement, recess adjournment or adjournment postponement of the Company Meeting effected pursuant to Section 5.4(bunless required by Law or the Interim Order, or with the Purchaser’s written consent;
(k) or (iii) with not, without the prior written consent of the Purchaser.
(h) The Company shall not , waive the deadline deadline: (i) for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed).Meeting; or
Appears in 1 contract
Samples: Arrangement Agreement
Company Meeting. Subject to the terms of this Agreement and (except in respect of Section 2.3(b)) receipt of the Interim Order, the Company shall:
(a) Subject to Section 5.8, convene and conduct the Company shall take, Meeting in accordance with its constating documents, the Interim Order and applicable Law Laws, as soon as reasonably practicable, and its Organizational Documents, all action necessary to convene and hold the Company Meeting as promptly as practicable after the date of this Agreement (but, subject to Section 5.4(b), in any event no later than February 19on or before May 21, 2019) to consider and vote upon (i) the Approval Resolution, (ii) the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out in the Company Circular and agreed to by the Parties, acting reasonably, and to cause such votes to be taken.2021;
(b) The in consultation with the Purchaser, fix and publish a record date for the purposes of determining the Company Shareholders entitled to receive notice of and vote at the Company Meeting shall not be postponed, recessed or adjourned by and give notice to the Purchaser of the Company Meeting;
(c) allow the Purchaser’s representatives and legal counsel to attend the Company Meeting;
(d) not adjourn, postpone or cancel (or propose or permit the adjournment, postponement or cancellation of) the Company Meeting without the Purchaser’s prior written consent; provided, that: except:
(i) as required for quorum purposes (in which case the meeting shall be adjourned and not cancelled), by Law, by a Governmental Entity or by a valid Company Shareholder action (which action is not solicited or proposed by the Company may postpone, recess or adjourn the Company MeetingBoard);
(ii) as expressly permitted under Section 5.4(k); or
(iii) for adjournments of not more than ten Business Days in the aggregate for the purposes of attempting to solicit proxies to obtain the Company Shareholder Approval;
(e) unless the Company Board has made the Company Change in Recommendation in accordance with the applicable provisions of this Agreement, use commercially reasonable efforts to solicit proxies in favour of the Arrangement Resolution and against any resolution submitted by any Company Shareholder that is inconsistent with the Arrangement Resolution and the completion of any of the transactions contemplated by this Agreement, including, if so requested by the Purchaser and at the expense of the Purchaser, using the services of proxy solicitation firms to solicit proxies in favour of the approval of the Arrangement Resolution;
(Af) provide the Purchaser with copies of or access to information regarding the Company Meeting generated by any proxy solicitation services firm engaged by the Company, as requested from time to time by the Purchaser;
(g) promptly advise the Purchaser as frequently as the Purchaser may reasonably request, and at least on a daily basis on each of the last ten (10) Business Days prior to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance date of the Company Meeting, or (B) if as to the aggregate tally of the time for which proxies received by the Company Meeting is originally scheduledin respect of the Arrangement Resolution;
(h) promptly advise the Purchaser of any written communication from any Company Shareholder in opposition to the Arrangement, as set forth in written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company Circular (in relation to the “Original Date”), or Arrangement and any date that withdrawal of Dissent Rights received by the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person and any written communications sent by or by proxy) to constitute a quorum necessary to conduct the business on behalf of the Company Meeting to any Company Shareholder exercising or purporting to obtain exercise Dissent Rights in relation to the Shareholder Approval, so long as in each case that Arrangement;
(i) provide the Purchaser with an opportunity to review and comment on any written communication sent by or on behalf of the Company exercises its right under this Section 5.4(b) to postponeany Company Shareholder exercising or purporting to exercise Dissent Rights and not make any payment or settlement offer, recess or adjourn the Company Meeting, the Company shall have provided prior written notice agree to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days any payment or settlement prior to the Original Date or any date that Effective Time with respect to Dissent Rights without the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess or adjourn the Company Meeting for up to ten Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business prior written consent of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date.Purchaser;
(cj) Subject to Section 5.8, not change the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation.
(e) The Company shall (i) fix the date of the Company Meeting and the record date of the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting.
(f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of Meeting in connection with any postponement, recess adjournment or adjournment postponement of the Company Meeting effected pursuant to Section 5.4(bunless required by Law or the Interim Order, or with the Purchaser’s written consent;
(k) or (iii) with not without the prior written consent of the Purchaser.
(h) The Company shall , such consent not to be unreasonably withheld, conditioned or delayed, waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without Meeting; and
(l) at the prior reasonable request of the Purchaser from time to time, promptly provide the Purchaser with a list (in both written consent and electronic form) of: (i) the registered Company Shareholders, together with their addresses and respective holdings of Company Shares; (ii) the names and addresses (to the extent in the Company’s possession or otherwise reasonably obtainable by the Company) and holdings of all Persons having rights issued by the Company to acquire Company Shares (including the holders of Company Options and Company PPSUs); and (iii) participants in book-based systems and non-objecting beneficial owners of Company Shares, together with their addresses and respective holdings of Company Shares. The Company shall from time to time require that its registrar and transfer agent furnish the Purchaser (which consent shall not be unreasonably conditionedwith such additional information, withheld including updated or delayed)additional lists of the Company Shareholders and lists of holdings and other assistance as the Purchaser may reasonably request.
Appears in 1 contract
Samples: Arrangement Agreement
Company Meeting. Subject to the terms of this Agreement and (except in respect of Section 2.3(b)) receipt of the Interim Order, the Company shall:
(a) Subject to Section 5.8, convene and conduct the Company shall take, Meeting in accordance with its constating documents, the Interim Order and applicable Law Laws, as soon as reasonably practicable, and its Organizational Documents, all action necessary to convene and hold the Company Meeting as promptly as practicable after the date of this Agreement (but, subject to Section 5.4(b), in any event no later than on or before February 1911, 2019) to consider and vote upon (i) the Approval Resolution, (ii) the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out in the Company Circular and agreed to by the Parties, acting reasonably, and to cause such votes to be taken.2022;
(b) The in consultation with the Purchaser, fix and publish a record date for the purposes of determining the Company Shareholders entitled to receive notice of and vote at the Company Meeting shall not be postponed, recessed or adjourned by and give notice to the Purchaser of the Company Meeting;
(c) allow the Purchaser’s representatives and legal counsel to attend the Company Meeting (including by virtual means);
(d) not adjourn, postpone or cancel (or propose or permit the adjournment, postponement or cancellation of) the Company Meeting without the Purchaser’s prior written consent; provided, that: except:
(i) as required for quorum purposes (in which case the meeting shall be adjourned and not cancelled), by Law, by a Governmental Entity or by a valid Company Shareholder action (which action is not solicited or proposed by the Company may postpone, recess or adjourn the Company MeetingBoard); or
(ii) as expressly permitted under Section 5.6(k);
(iii) for adjournments of not more than ten (10) Business Days in the aggregate for purposes of attempting to solicit proxies to obtain the Required Approval of the Arrangement Resolution; or
(e) unless the Company Board has made the Company Change in Recommendation in accordance with the applicable provisions of this Agreement, use commercially reasonable efforts to solicit proxies in favour of the Arrangement Resolution and against any resolution submitted by any Company Shareholder that is inconsistent with the Arrangement Resolution and the completion of any of the transactions contemplated by this Agreement, including, if so requested by the Purchaser and at the expense of the Purchaser, using the services of proxy solicitation firms to solicit proxies in favour of the approval of the Arrangement Resolution;
(Af) provide the Purchaser with copies of or access to information regarding the Company Meeting generated by any proxy solicitation services firm engaged by the Company, as reasonably requested from time to time by the Purchaser;
(g) promptly advise the Purchaser as frequently as the Purchaser may reasonably request, and at least on a daily basis on each of the last ten (10) Business Days prior to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance date of the Company Meeting, or (B) if as to the aggregate tally of the time for which proxies received by the Company Meeting is originally scheduledin respect of the Arrangement Resolution;
(h) promptly advise the Purchaser of any written or oral communication from any significant Company Shareholder, as set forth which for greater certainty will include the top 20 Company Shareholders, in opposition to the Arrangement, written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company Circular (in relation to the “Original Date”), or Arrangement and any date that withdrawal of Dissent Rights received by the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person and any written communications sent by or by proxy) to constitute a quorum necessary to conduct the business on behalf of the Company Meeting to any Company Shareholder exercising or purporting to obtain exercise Dissent Rights in relation to the Shareholder Approval, so long as in each case that Arrangement;
(i) provide the Purchaser with an opportunity to review and comment on any written communication sent by or on behalf of the Company exercises its right under this Section 5.4(b) to postponeany Company Shareholder exercising or purporting to exercise Dissent Rights and not make any payment or settlement offer, recess or adjourn the Company Meeting, the Company shall have provided prior written notice agree to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days any payment or settlement prior to the Original Date or any date that Effective Time with respect to Dissent Rights without the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess or adjourn the Company Meeting for up to ten Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business prior written consent of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date.Purchaser;
(cj) Subject to Section 5.8, not change the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation.
(e) The Company shall (i) fix the date of the Company Meeting and the record date of the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting.
(f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of Meeting in connection with any postponement, recess adjournment or adjournment postponement of the Company Meeting effected pursuant to Section 5.4(bunless required by Law or the Interim Order, or with the Purchaser’s written consent;
(k) or (iii) with not without the prior written consent of the Purchaser.
(h) The Company shall not , waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without Meeting; and
(l) at the prior reasonable request of the Purchaser from time to time and subject to the requirements of applicable Laws, promptly provide the Purchaser with a list (in both written consent and electronic form) of: (i) the registered Company Shareholders, together with their addresses and respective holdings of Company Shares; (ii) the names and addresses (to the extent in the Company’s possession or otherwise reasonably obtainable by the Company) and holdings of all Persons having rights issued by the Company to acquire Company Shares (including the holders of Company Options, Company RSUs, Company PSUs, Company DSUs and Convertible Notes); and (iii) participants in book-based systems and non-objecting beneficial owners of Company Shares, together with their addresses and respective holdings of Company Shares. The Company shall from time to time request that its registrar and transfer agent furnish the Purchaser (which consent shall not be unreasonably conditionedwith such additional information, withheld including updated or delayed)additional lists of the Company Shareholders and lists of holdings and other assistance as the Purchaser may reasonably request, including for the purpose of determining the residency within the United States of holders and beneficial owners of Company Shares.
Appears in 1 contract
Company Meeting. (a) Subject to Section 5.8the receipt of the Interim Order and the terms of this Agreement and the Interim Order, the Company shall take, shall:
(i) convene and conduct the Company Meeting (and cause the Arrangement Resolution to be voted on at the Company Meeting) in accordance with applicable Law and its Organizational the Interim Order, the Company Constating Documents, all action necessary to convene and hold Law as soon as reasonably practicable, but in any event not later than December 20, 2023, and not adjourn, postpone or cancel (or propose or permit the adjournment, postponement or cancellation of) the Company Meeting as promptly as practicable after without the date prior written consent of this Agreement the Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, except as:
(butA) required or permitted under Section 4.10(d) or 5.4(e);
(B) required for quorum purposes (in which case, subject to Section 5.4(bthe Company Meeting shall be adjourned and not cancelled), in any event no later than February 19, 2019; or
(C) to consider and vote upon (i) the Approval Resolution, required by Law or a Governmental Authority;
(ii) not propose or submit for consideration at the election Company Meeting any business other than the Arrangement without prior written consent of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and Purchaser;
(iii) for use commercially reasonable efforts to solicit proxies in favour of the approval of the Arrangement Resolution and against any other proper purpose as may be set out in resolution submitted by any Person that is inconsistent with the Company Circular Arrangement Resolution and agreed to the completion of any of the transactions contemplated by this Agreement, including, if so requested by the PartiesPurchaser, acting reasonably, and at the Purchaser’s expense, using established proxy solicitation services firms and co-operating with any Persons engaged by the Purchaser to cause such votes to be taken.solicit proxies in favour of the Arrangement Resolution and against any resolution submitted by any Person that is inconsistent with the Arrangement Resolution;
(biv) The Company Meeting shall not be postponedpermit the Purchaser to, recessed or adjourned by at its expense, on behalf of the Company without Purchaser’s prior written consent; provided, that: (i) the Company may postpone, recess or adjourn the Company Meeting, (A) to the extent, in management of the Company’s reasonable judgment required by applicable Law , directly or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance of the Company Meeting, or (B) if as of the time for which the Company Meeting is originally scheduled, as set forth in the Company Circular (the “Original Date”), or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval, so long as in each case that the Company exercises its right under this Section 5.4(b) to postpone, recess or adjourn the Company Meeting, the Company shall have provided prior written notice to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days prior to the Original Date or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess or adjourn the Company Meeting for up to ten Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date.
(c) Subject to Section 5.8, the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company)of its choice, following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).
(d) Notwithstanding anything to the contrary set forth in this Agreementactively solicit proxies, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms on behalf of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents management of the Company, in favour of the Investor Rights approval of the Arrangement Resolution and against any resolution submitted by any Person that is inconsistent with the Arrangement Resolution and the completion of any of the transactions contemplated by this Agreement and applicable in compliance with Law;
(v) promptly provide the Purchaser with copies of or access to the Company Shareholders at information regarding the Company Meeting generated by the Company’s transfer agent or any proxy solicitation services firm retained by the Company, as reasonably requested from time to time by the Purchaser;
(or at any postponement, recess or adjournment thereofvi) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, consult with the Company Board Recommendation.
(e) The Company shall (i) fix Purchaser in fixing the date of the Company Meeting and the record date of the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting.
(f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders purpose of determining the Persons entitled to receive notice of and vote at the Company Meeting, give notice to the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of any postponement, recess or adjournment Purchaser of the Company Meeting effected pursuant Meeting, and allow the Representatives and outside legal counsel of the Purchaser to Section 5.4(b) or (iii) with attend the prior written consent of Purchaser.Company Meeting;
(hvii) The promptly advise the Purchaser, at such times as the Purchaser may reasonably request and on a daily basis on each of the last ten Business Days prior to the date of the Company shall not waive Meeting, as to the deadline for the submission aggregate tally of proxies (for greater certainty, specifying votes “for” and votes “against” the Arrangement Resolution) received by the Company in respect of the Arrangement Resolution;
(viii) promptly advise the Purchaser of any communication (written or oral) received from, or Proceedings brought by (or, to the knowledge of the Company, threatened by), any Person in opposition to the Arrangement, including any such communication received from a proxy advisory firm recommending or proposing to recommend that Company Shareholders for vote against the Arrangement Resolution, any written notice of dissent or purported exercise of Dissent Rights received by the Company Meeting in relation to the Arrangement and any withdrawal of Dissent Rights received by the Company and, subject to Law, provide the Purchaser with a reasonable opportunity to review and comment upon any written communication sent by or on behalf of the Company to any such Person and to participate in any discussions or negotiations with or including any such Person;
(ix) not settle, compromise or make any payment with respect to, or agree to settle, compromise or make any payment with respect to, any exercise or purported exercise of Dissent Rights without the prior written consent of Purchaser (the Purchaser, which consent may be withheld for any or no reason;
(x) not, without the prior written consent of the Purchaser, change the record date for the purpose of determining the Persons entitled to receive notice of and to vote at the Company Meeting (including in connection with any adjournment or postponement of the Company Meeting) unless required by the Court or Law, provided that no such change will result in the Company Meeting being held later than five Business Days prior to the Outside Date; and
(xi) at the reasonable request of the Purchaser from time to time, provide the Purchaser with a list of the:
(A) registered Company Shareholders, together with their addresses and respective holdings of the Company Shares;
(B) names, addresses and holdings of all Persons owning securities that entitle the holder to subscribe for or otherwise acquire Company Shares; and
(C) participants and book-based nominee registrants, such as CDS & Co., CEDE & Co. and The Depository Trust Company, and non-objecting beneficial owners of the Company Shares, together with their addresses and respective holdings of the Company Shares, all as of a date that is as close as reasonably practicable to the date of delivery of such lists, and shall not be unreasonably conditionedfrom time to time require that its registrar and transfer agent furnish the Purchaser with such additional information, withheld including updated or delayed)additional lists of the Company Shareholders and lists of securities positions and other assistance as the Purchaser may reasonably request.
Appears in 1 contract
Samples: Arrangement Agreement (Crescent Point Energy Corp.)
Company Meeting. Subject to the terms of this Agreement and the receipt of the Interim Order, the Company covenants in favour of the Purchaser that the Company shall:
(a) Subject to Section 5.8, the Company shall take, in accordance with applicable Law and its Organizational Documents, all action necessary to lawfully convene and hold the Company Meeting in accordance with the Interim Order, the Constating Documents of the Company and applicable laws, as promptly soon as reasonably practicable after the date of this Agreement (but, subject to Section 5.4(b)Interim Order is issued and, in any event no event, not later than February 19November 15, 2019) 2023, for the purpose of having the Company Shareholders consider the Arrangement Resolution, and will not, unless the Purchaser otherwise consents in writing, adjourn, postpone or cancel the Company Meeting or propose to consider and vote upon do any of the foregoing except:
(i) for an adjournment as required for quorum purposes (in which case the Approval Resolution, Company Meeting will be adjourned and not cancelled) or by applicable law; or
(ii) the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and required under Section 6.01(h); or
(iii) for in the event that the Company or the Purchaser reasonably determines that (x) any other proper purpose as may be set out of the information relating to the Purchaser included in the Company Circular and agreed or the Schedule 13E-3 contains any untrue statement of material fact or omits to by the Parties, acting reasonably, and to cause such votes state any material fact required to be taken.
stated therein or necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading or (by) The Company Meeting shall not be postponed, recessed such adjournment is necessary or adjourned by appropriate to address material comments of any Securities Authority in respect of any of the information relating to the Purchaser in the Company without Purchaser’s prior written consentCircular or the Schedule 13E-3; provided, that: (i) provided that the Company may postpone, recess or adjourn and the Company Meeting, (A) Purchaser agree to the extent, in the Company’s reasonable judgment required by applicable Law or cooperate with one another to make any necessary to ensure that any required supplement or amendment modifications to the Company Circular is delivered to or the Company Shareholders or such other Persons required to receive Schedule 13E-3 and/or address the Company Circular by applicable Law for the amount of time required by applicable Law in advance comments of the Company Meetingapplicable Securities Authority as expeditiously as reasonably practicable, or (B) provided, however, that, if as of the time for which the Company Meeting is originally scheduled, as set forth in the Company Circular (the “Original Date”), or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4occur during a Superior Proposal Notice Period, the Company reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct may, and upon the business request of the Company Meeting or to obtain the Shareholder Approval, so long as in each case that the Company exercises its right under this Section 5.4(b) to postpone, recess or adjourn the Company Meeting, the Company shall have provided prior written notice to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days prior to the Original Date or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postponeshall, recess adjourn or adjourn postpone the Company Meeting for up to ten to: (x) a date specified by the Purchaser that is not earlier than eight Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by after the Company upon request by Purchaser if date on the Original Date, or any date that which the Company Meeting is was originally scheduled to be held thereafter in accordance with held; or (y) if the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) does not specify such date to constitute a quorum necessary to conduct the business of eighth Business Day after the date on which the Company Meeting was originally scheduled to be held;
(b) not, except as otherwise expressly contemplated by this Agreement, propose or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall submit for consideration at the Company Meeting any business other than the Arrangement without the Purchaser's prior written consent, such consent not to be postponedunreasonably withheld, recessed conditioned or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date.delayed;
(c) Subject subject to Section 5.8, the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, solicit from the Company has paid Shareholders proxies in favour of the approval of the Arrangement Resolution and against any resolution submitted by any person that is inconsistent with, or which seeks (without the Purchaser's consent) to hinder or delay the Arrangement Resolution and the consummation of the transactions contemplated by this Agreement including, if so requested by the Purchaser, using the services of proxy solicitation agents, consulting with the Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event thatselection and retainer of any such proxy solicitation agent and reasonably considering the Purchaser's recommendation with respect to any such agent, after and cooperating with any persons engaged by the date Purchaser, to solicit proxies in favour of this Agreementthe approval of the Arrangement Resolution, recommend to all Company Shareholders that they vote in favour of the Arrangement Resolution, and take all other actions that are reasonably necessary or desirable to obtain the Company Board effects a Change of RecommendationShareholder Approval, and: (i) permit the Company shall nevertheless submit the matters contemplated by Section 5.4(a) Purchaser to assist and participate in all calls and meetings (including other than, for the avoidance of doubt doubt, non-substantive calls or meetings that are not, or could not reasonably be considered by the Approval Resolution Purchaser to be, material or otherwise relevant to the Purchaser) with such proxy solicitation agent; (ii) provide the Purchaser with all information distributions or updates from the proxy solicitation agent; (iii) consult with, and consider any suggestions from, the election Purchaser with regards to the proxy solicitation agent; and (iv) consult with the Purchaser and keep the Purchaser apprised, with respect to such solicitation and other actions;
(d) not, without the prior written consent of the Purchaser Nominees to the Company BoardPurchaser, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation.
(e) The Company shall (i) fix the date of the Company Meeting and change the record date of the Company Meeting in consultation with Purchaser to ensure that each date is acceptable to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(a), and (ii) give notice to Purchaser of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting.
(f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of any postponement, recess or adjournment and notice of the Company Meeting effected pursuant to Section 5.4(bin connection with any adjournment or postponement of the Company Meeting;
(e) or (iii) with not, without the prior written consent of the Purchaser.
(h) The Company shall not , waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting;
(f) notify the Purchaser if any beneficial holders of Company Shares seek to become registered Company Shareholders by withdrawing their Company Shares from the book-based system;
(g) advise the Purchaser as reasonably requested, and on a daily basis commencing 10 Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of the Company Meeting without and all matters to be considered at the prior written consent Company Meeting;
(h) promptly provide the Purchaser with any notice relating to the Company Meeting and allow Representatives of the Purchaser to attend the Company Meeting; and
(which consent shall not be unreasonably conditioned, withheld i) promptly advise the Purchaser of any communication from any Company Securityholder in opposition to the Arrangement or delayed)the Arrangement Resolution.
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Company Meeting. (a) Subject to Section 5.8the other provisions of this Agreement, the Company shall take, in accordance with applicable Law and its Organizational Documents, (a) take all action necessary to convene and hold the Company Meeting as promptly as practicable after the date of this Agreement (but, subject to Section 5.4(b), in any event no later than February 19, 2019) to consider and vote upon (i) the Approval Resolution, (ii) the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out in the Company Circular and agreed to by the Parties, acting reasonably, and to cause such votes to be taken.
(b) The Company Meeting shall not be postponed, recessed or adjourned by the Company without Purchaser’s prior written consent; provided, that: (i) the Company may postpone, recess or adjourn the Company Meeting, (A) to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance of the Company Meeting, or (B) if as of the time for which the Company Meeting is originally scheduled, as set forth in the Company Circular (the “Original Date”), or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms DGCL and the Certificate of this Section 5.4Incorporation and Bylaws to duly call, the Company reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute give notice of, convene and hold a quorum necessary to conduct the business meeting of the Company Meeting or to obtain the Shareholder Approval, so long as in each case that the Company exercises its right under this Section 5.4(b) to postpone, recess or adjourn the Company Meeting, the Company shall have provided prior written notice to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days prior to the Original Date or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall stockholders as promptly as reasonably practicable thereafter postpone, recess or adjourn following the mailing of the Proxy Statement for the purpose of obtaining the Company Meeting for up to ten Business Days in accordance with Purchaser’s direction. The Company Meeting shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, Stockholder Approval (such meeting or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person adjournment or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y) more than an aggregate of sixty days from the Original Date or (z) to a date after the Outside Date.
(c) Subject to Section 5.8postponement thereof, the “Company shall Meeting”) and use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election of the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at cause the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation to occur as promptly as reasonably practicable after the mailing of the Company Board or, if Proxy Statement; provided that the Change Company’s determination of Recommendation is withdrawn, with the Company Board Recommendation.
(e) The Company shall (i) fix the date of the Company Meeting and the record date any adjournment or postponement of the Company Meeting shall in consultation with Purchaser each case (except any such adjournment or postponement that is required by applicable Law) be subject to ensure that each date is acceptable Parent’s consent (such consent not to both Purchaser and the Company, each acting reasonably and taking into account the dates contemplated by Section 5.4(abe unreasonably withheld or delayed), and (iib) give notice subject to Purchaser a Change of Recommendation in accordance with Section 4.03(c), (x) include the Recommendation in the Proxy Statement, and (y) use reasonable best efforts to solicit from its stockholders proxies in favor of the approval of this Agreement, the Merger and the other transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.01 and subject to compliance with Section 7.02, the Company, regardless of whether the Board of Directors has approved, endorsed or recommended an Alternative Proposal, or has withdrawn, modified or amended the Recommendation, will submit this Agreement to the stockholders of the Company Meeting and allow Purchaser’s Representatives to attend the Company Meeting.
(f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to at the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to for the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as purpose of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in adopting this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required by applicable Law, (ii) if necessary as a result of any postponement, recess or adjournment of the Company Meeting effected pursuant to Section 5.4(b) or (iii) with the prior written consent of Purchaser.
(h) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed).
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Company Meeting. The Company shall, as soon as reasonably practicable after the earliest to occur of (x) the U.S. SEC informing the Parent that it has no remaining comments to, or will not review, the Parent Proxy Statement (and the Parent agrees to advise the Company of such matters promptly after the U.S. SEC informs the Parent of such) or (y) the passage of at least ten (10) calendar days (as calculated pursuant to Rule 14a-6 of the U.S. Exchange Act) since the filing of a preliminary Parent Proxy Statement with the U.S. SEC not informing the Parent that it intends to review the Parent Proxy Statement (in either case, “SEC Clearance”):
(a) Subject duly call, give notice of, convene and conduct the Company Meeting (including by virtual means) in accordance with the Interim Order, the Company’s constating documents and applicable Laws as promptly as reasonably practicable, using commercially reasonable efforts to Section 5.8convene and conduct the Company Meeting as soon as practicable, and in any event, within thirty-five (35) days of the receipt of the SEC Clearance (and, in that regard, the Company shall takeabridge, in accordance as necessary, any time period that may be abridged under NI 54-101); provided that the Parent shall cooperate with applicable Law the Company and its Organizational Documentsuse commercially reasonable best efforts to set the record dates for, all action necessary to schedule and convene and hold the Company Meeting as promptly as practicable after and the Parent Meeting on the same dates;
(b) in consultation with the Parent, fix and publish a record date for the purposes of this Agreement determining the Company Securityholders entitled to receive notice of and to vote at the Company Meeting;
(butc) not adjourn, subject to Section 5.4(b)postpone or cancel (or propose or permit the adjournment, in any event no later than February 19, 2019postponement or cancellation of) to consider and vote upon the Company Meeting except (i) the Approval Resolutionas required by applicable Laws or a Governmental Entity, (ii) as required for quorum purposes (in which case the election of meeting shall be adjourned and not cancelled), (iii) if at any time following the Purchaser Nominees to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting dissemination of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the CompanyCircular, the Investor Rights Agreement and applicable Law, and (iii) for any other proper purpose as may be set out Company reasonably determines in good faith that the Company Circular and agreed to by the Parties, acting reasonably, and to cause such votes Securityholder Approval is unlikely to be taken.
(b) The obtained at the Company Meeting (in which case the meeting shall be adjourned and not be postponed, recessed or adjourned by cancelled); (iv) the Company without PurchaserBoard shall have determined in good faith (after consultation with outside legal counsel) that it is necessary or appropriate to postpone or adjourn the Company Meeting in order to give Company Securityholders sufficient time to evaluate any information or disclosure that the Company has sent or otherwise made available to such holders by issuing a press release, filing materials with the Canadian Securities Authorities or otherwise; (v) as permitted by Section 9.3(b), or (vi) with the Parent’s prior written consent; provided, that: (i) the Company may postpone, recess or adjourn the Company Meeting, (A) to the extent, in the Company’s reasonable judgment required by applicable Law or necessary to ensure that any required supplement or amendment to the Company Circular is delivered to the Company Shareholders or such other Persons required to receive the Company Circular by applicable Law for the amount of time required by applicable Law in advance of the Company Meeting, or (B) if as of the time for which the Company Meeting is originally scheduled, as set forth in the Company Circular (the “Original Date”), or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, the Company reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval, so long as in each case that the Company exercises its right under this Section 5.4(b) to postpone, recess or adjourn the Company Meeting, the Company shall have provided prior written notice be permitted to Purchaser; and (ii) if the Company delivers a notice of an intent to make a Change of Recommendation within the five Business Days prior to the Original Date or any date that the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, if directed by Purchaser, the Company shall as promptly as practicable thereafter postpone, recess postpone or adjourn the Company Meeting for up pursuant to ten Business Days clause (ii), (iii) and (iv) on no more than two occasions in accordance with Purchaser’s direction. The Company Meeting the aggregate and no such adjournment shall be postponed, recessed or adjourned by the Company upon request by Purchaser if on the Original Date, or any date that delay the Company Meeting is scheduled to be held thereafter in accordance with the terms of this Section 5.4, Purchaser reasonably believes there will be insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting or to obtain the Shareholder Approval. Notwithstanding anything to the contrary set forth in this Agreement but subject to this Section 5.4(b), in no event shall the Company Meeting be postponed, recessed or adjourned (x) more than ten days in connection with any one postponement, recess or adjournment, (y10) more than an aggregate of sixty days from the Original Date prior-scheduled date or (z) to a date that is on or after the fifth (5th) business day preceding the Outside Date.
(c) Subject to Section 5.8, the Company shall use its reasonable best efforts to obtain the Shareholder Approval and to have the Purchaser Nominees duly elected to the Company Board effective as of the Closing, including the solicitation of proxies therefor, through a proxy solicitation services firm (selected jointly by Purchaser and the Company), following the Company Circular being filed with the Canadian Securities Regulators and sent to each Company Shareholder and other Person as required by Law in accordance with Section 5.1(a)(i).;
(d) Notwithstanding anything to promptly advise the contrary set forth in this AgreementParent as the Parent may reasonably request, unless this Agreement is terminated pursuant to Article 6, and, to the extent required by the terms of this Agreement, the Company has paid to Purchaser or Parent the Termination Fee in accordance with Section 6.5(b), in the event that, after the date of this Agreement, the Company Board effects and at least on a Change of Recommendation, the Company shall nevertheless submit the matters contemplated by Section 5.4(a) (including for the avoidance of doubt the Approval Resolution and the election daily basis on each of the Purchaser Nominees last ten (10) business days prior to the Company Board, effective as of the Closing, to hold office until the close of the next annual meeting of the Company Shareholders or until his or her successor has been duly elected and/or appointed and qualified or until his or her earlier death, resignation or removal pursuant to the Organizational Documents of the Company, the Investor Rights Agreement and applicable Law) to the Company Shareholders at the Company Meeting (or at any postponement, recess or adjournment thereof) without a recommendation of the Company Board or, if the Change of Recommendation is withdrawn, with the Company Board Recommendation.
(e) The Company shall (i) fix the date of the Company Meeting as to the aggregate tally of the proxies received by the Company in respect of the Arrangement Resolution;
(e) promptly (and in no event later than two (2) business days after receipt of notice) advise the Parent of any written communication from any Company Shareholder in opposition to the Arrangement (except for non-substantive communications from any Company Shareholder that purports to hold less than 0.1% of Company Shares (provided that communications from such Company Shareholder are not substantive in the aggregate)), written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company in relation to the Arrangement and any withdrawal of Dissent Rights received by the Company and, subject to applicable Law, any written communications sent by or on behalf of the Company to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Arrangement;
(f) unless the Company Board has made a Change in Recommendation in accordance with Section 7.4(a), solicit proxies in favour of the Arrangement Resolution and against any resolution submitted by any Company Shareholder (unless otherwise consented to by the Parent) and, in connection therewith, in consultation with the Parent, use the services of one or more proxy solicitation services (at the expense of the Company);
(g) provide the Parent with copies of or access to information regarding the Company Meeting generated by any proxy solicitation services engaged by the Company, as requested from time to time by the Parent;
(h) not change the record date for the Company Securityholders entitled to vote at the Company Meeting in connection with any adjournment or postponement of the Company Meeting in consultation unless required by Law;
(i) not make any compromise, payment or settlement offer, or agree to any compromise, payment or settlement with Purchaser respect to, or otherwise negotiate any exercise of any Dissent Rights without the prior written consent of the Parent (not to ensure that each date is acceptable to both Purchaser and the Companybe unreasonably withheld, each acting reasonably and taking into account the dates contemplated by Section 5.4(aconditioned or delayed), and ; and
(iij) give notice to Purchaser the Parent of the Company Meeting and allow Purchaser’s its Representatives and legal counsel to attend the Company Meeting.
Meeting (f) The Company agrees (i) to provide Purchaser and its designated Representatives reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing weekly voting reports and, during the last two weeks prior to the Company Meeting or any postponement, recess or adjournment thereof, daily voting reports) and (ii) to give written notice to Purchaser one day prior to the Company Meeting and on the day of, but prior to the Company Meeting, indicating whether as of such date, sufficient proxies to obtain the Shareholder Approval have been obtained.
(g) Notwithstanding anything to the contrary in this Agreement, once the Company has established a record date for the Company Shareholders entitled to vote at the Company Meeting, the Company shall not change such record date, unless (i) required including by applicable Law, (ii) if necessary as a result of any postponement, recess or adjournment of the Company Meeting effected pursuant to Section 5.4(b) or (iii) with the prior written consent of Purchaser.
(h) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayedvirtual means).
Appears in 1 contract
