Covenants Regarding Non-Solicitation. (a) Storm shall immediately cease and cause to be terminated all existing discussions and negotiations (including, without limitation, through any advisors or other parties on its behalf), with any parties (other than ARC) conducted before the date of this Agreement with respect to any proposal that constitutes, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm shall not modify or release any third party from any existing confidentiality agreement (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require the return or destruction of all confidential information provided to any third parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights to require) the destruction of all material including or incorporating or otherwise reflecting any material confidential information regarding Storm and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its officers, directors, employees, representatives and agents shall be deemed to be a breach of this Section 3.5(a) by Storm. (b) Storm shall not, directly or indirectly, do or authorize or permit any of its officers, directors or employees or any financial advisor, expert or other representative retained by it to do, any of the following: (i) solicit, assist, initiate, encourage or in any way facilitate (including by way of furnishing information, or entering into any form of written or oral agreement, arrangement or understanding) any Acquisition Proposal or inquiries, proposals or offers regarding an Acquisition Proposal; (ii) enter into or participate in any discussions or negotiations regarding an Acquisition Proposal, or furnish to any other Person any information with respect to its businesses, properties, operations, prospects or conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing; (iii) waive, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or (iv) accept, recommend, approve, agree to, endorse, or propose publicly to accept, recommend, approve, agree to, or endorse any Acquisition Proposal or agreement in respect thereto; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to the Storm Meeting: (v) enter into or participate in any discussions or negotiations with a third party who (without any solicitation, initiation or encouragement, directly or indirectly, after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that: (A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and (B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and (vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC. (c) Storm shall promptly (and in any event within 24 hours) notify ARC (at first orally and then in writing) of any Acquisition Proposal (or any amendment thereto) or any request for non-public information relating to Storm, its subsidiaries or assets, or any amendments to the foregoing. Such notice shall include a copy of any written Acquisition Proposal (and any amendment thereto) which has been received or, if no written Acquisition Proposal has been received, a description of the material terms and conditions of, and the identity of the Person making any inquiry, proposal, offer or request. Storm shall also provide such further and other details of the Acquisition Proposal or any amendment thereto as ARC may reasonably request. Storm shall keep ARC promptly and fully informed of the status, including any change to material terms, of any Acquisition Proposal or any amendment thereto, shall respond promptly to all inquiries by ARC with respect thereto, and shall provide ARC copies of all material correspondence and other written material sent to or provided to Storm by any Person in connection with such inquiry, proposal, offer or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or request. (d) Storm shall give ARC, orally and in writing, at least two (2) Business Days advance notice of any decision by the Storm Board of Directors to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. In addition, during such two (2) Business Day period Storm shall, and shall cause its financial and legal advisors to, negotiate in good faith with ARC and its financial and legal advisors to make such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day period, the Storm Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. (e) Storm shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal. (f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings. (g) Storm and ARC shall each ensure that their respective officers, directors and employees and any investment bankers or other advisers or representatives retained by it are aware of the provisions of this Section 3.5 and shall be responsible for any breach of this Section 3.5 by any of them. (h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
Appears in 1 contract
Covenants Regarding Non-Solicitation. (a) Storm The Company shall, and shall direct and cause its Representatives and its subsidiaries and their Representatives to immediately cease and cause to be terminated all existing discussions and negotiations (includingany solicitation, without limitationencouragement, through any advisors activity, discussion or other parties on its behalf), negotiation with any parties (other than ARC) conducted before the date of this Agreement that may be ongoing with respect to any proposal that constitutes, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm Proposal whether or not initiated by the Company and, in connection therewith, the Company shall not modify or release any third party from any existing confidentiality agreement request (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require the return or destruction of all confidential information regarding the Company and its subsidiaries previously provided to any third such parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights it has to require) the destruction of all material materials including or incorporating or otherwise reflecting any material confidential information regarding Storm the Company and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its officers, directors, employees, representatives and agents shall be deemed to be a breach of this Section 3.5(a) by Stormsubsidiaries.
(b) Storm Subject to Section 5.6, the Company agrees that it shall not, directly or indirectly, do or and shall not authorize or permit any of its officers, directors or employees subsidiaries or any financial advisorof its Representatives and its subsidiaries’ Representatives, expert directly or other representative retained by it indirectly, to do, any of the following:
(i) solicit, assist, initiate, encourage or in any way facilitate (facilitate, including by way of furnishing information, information or entering into any form of written or oral agreement, arrangement or understanding) , any Acquisition Proposal inquiries or inquiries, the making of any proposals or offers regarding an Acquisition Proposal;
, (ii) enter into or participate in any discussions or negotiations regarding an any Acquisition Proposal, (iii) withdraw or furnish modify in a manner adverse to any other Person any information with respect GSK, or publicly propose to its businesseswithdraw or modify in a manner adverse to GSK, propertiesthe approval, operations, prospects recommendation or conditions declaration of advisability of the board of directors of the Company of the transactions contemplated hereby (financial it being understood that failing to affirm the approval or otherwise) in connection with recommendation of the board of directors of Company of the transactions contemplated hereby within ten Business Days after an Acquisition Proposal or otherwise cooperate in any way withhas been publicly announced shall be considered an adverse modification if such failure occurs prior to the Meeting), or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waive, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve, agree to, endorse, approve or propose publicly to accept, recommend, approve, agree to, or endorse recommend any Acquisition Proposal or agreement in respect thereto; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to the Storm Meeting:
(v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.6(a)) or requiring the Company to abandon, terminate or fail to consummate the Arrangement or providing for the payment of any break, termination or other fees or expenses to any person in the event that the Company or any of its subsidiaries completes the transactions contemplated hereby or any other transaction with GSK or any of its affiliates agreed to prior to any termination of this Agreement. Notwithstanding the preceding sentence and any other provisions of this Agreement, the board of directors of the Company may, prior to the approval of the Arrangement by the Securityholders, consider, participate in any discussions or negotiations with, or provide information in accordance with the last sentence of this Section 5.5(b) to, any person who has delivered a bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement and did not otherwise result from a breach of this Section 5.5 if the board of directors of the Company determines in good faith, after consultation with a third party financial advisor and outside legal counsel, that such Acquisition Proposal constitutes, or is reasonably likely to lead to, a Superior Proposal and, after consultation with outside legal counsel, the board of directors of the Company determines that its failure to do so would be inconsistent with its fiduciary duties under applicable Laws, provided, however, that, prior to providing any such information, the Company must obtain a confidentiality agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement, and on terms no more favourable to such person than the terms of the Confidentiality Agreement including a standstill provision at least as stringent as the standstill provision contained in the Confidentiality Agreement. The Company shall not consider, negotiate, accept, approve or recommend an Acquisition Proposal or provide information to any person proposing an Acquisition Proposal, in each case after the date of the approval of the Arrangement by the Securityholders. If the Company receives a request for material non-public information from a person who has made an unsolicited bona fide written Acquisition Proposal and the Company is permitted, as contemplated under the second sentence of this Section 5.5(b), to negotiate the terms of such Acquisition Proposal, then, and only in such case, the Company may, subject to the execution by such person of the confidentiality agreement as described above, provide such person with access to information regarding the Company; provided that the Company sends a copy of any such confidentiality agreement to GSK promptly upon its execution and GSK is provided with a list of, and copies of, the information provided to such person and is immediately provided with access to similar information to which such person was provided.
(without any solicitation, initiation or encouragement, directly or indirectly, c) From and after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that:
(A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and
(B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC.
(c) Storm Company shall promptly (and in any event within 24 hours) notify ARC (GSK, at first orally and then in writing) , of any inquiries, proposals or offers relating to or constituting an Acquisition Proposal (or any amendment thereto) Proposal, or any request for non-public information relating to Storm, its subsidiaries or assets, the Company or any amendments to the foregoingof its subsidiaries. Such notice shall include a copy of any written Acquisition Proposal (and any amendment thereto) which has been received or, if no written Acquisition Proposal has been received, a description of the material terms and conditions ofof any proposal, and inquiry or offer, the identity of the Person person making any inquiry, such proposal, inquiry or offer or request. Storm shall also and provide such further and other details of the Acquisition Proposal proposal, inquiry or any amendment thereto offer as ARC GSK may reasonably request. Storm The Company shall keep ARC promptly and GSK fully informed of the status, including any change to the material terms, of any Acquisition Proposal or any amendment thereto, shall respond promptly to all inquiries by ARC with respect thereto, and shall provide ARC copies of all material correspondence and other written material sent to or provided to Storm by any Person in connection with such inquiry, proposal, offer proposal or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or requestoffer.
(d) Storm Nothing contained in Section 5.1(d) or 5.5(b) shall give ARC, orally and in writing, at least two (2) Business Days advance notice prohibit the board of any decision by the Storm Board of Directors to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination directors of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior ProposalCompany from withdrawing, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve modifying or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change changing its recommendation to the holders of Common Shares in respect of the Arrangement. In additiontransactions contemplated hereby prior to the approval of the Arrangement by the Securityholders, during such two (2) Business Day period Storm shall, and shall cause its financial and legal advisors to, negotiate if the board of directors of the Company determines in good faith (after consultation with ARC outside legal counsel) that such withdrawal, modification or change is necessary for the board of directors of the Company to act in a manner consistent with its fiduciary duties or applicable Laws; provided that (i) not less than 48 hours before the board of directors of the Company considers any such withdrawal, modification or change, the Company shall give GSK written notice thereof including a summary of the reasons for and all relevant information relating to such withdrawal, modification or change, and (ii) the foregoing shall not relieve the Company from its financial obligation to proceed to call and legal advisors hold the Meeting and to make such adjustments hold the vote on the Arrangement Resolution and the Rights Plan Waiver Resolution, except in circumstances where this Agreement is terminated in accordance with the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day period, the Storm Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangementhereof.
(e) Storm The Company shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal.
(f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that its officers, directors and employees and its subsidiaries and their respective officers, directors and employees and any investment bankers financial advisors or other advisers advisors or representatives retained by it are aware of the provisions of this Section 3.5 5.5, and it shall be responsible for any breach of this Section 3.5 5.5 by any of themsuch officers, directors, employees, financial advisors or other advisors or representatives.
(hf) Nothing contained in this agreement Section 5.5 shall prevent prohibit the Storm Board Company from making any disclosure to Securityholders, if the board of Directors from complying directors of the Company determines in good faith (after consultation with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating outside legal counsel) that the failure to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance make such disclosure would be inconsistent with Section 3.5(d)its fiduciary duties or applicable Laws.
Appears in 1 contract
Covenants Regarding Non-Solicitation. (a) Storm Terasen shall, and shall direct and cause its Representatives and its subsidiaries and their Representatives immediately cease and cause to be terminated all existing discussions and negotiations (includingany solicitation, without limitationencouragement, through any advisors activity, discussion or other parties on its behalf), negotiation with any parties (other than ARC) conducted before the date of this Agreement that may be ongoing with respect to any proposal that constitutes, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm Proposal whether or not initiated by Terasen and in connection therewith, Terasen shall not modify or release any third party from any existing confidentiality agreement request (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require require) the return or destruction of all confidential information regarding Terasen and its subsidiaries previously provided to any third such parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights it has to require) the destruction of all material materials including or incorporating or otherwise reflecting any material confidential information regarding Storm Terasen and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its officers, directors, employees, representatives and agents shall be deemed to be a breach of this Section 3.5(a) by Stormsubsidiaries.
(b) Storm Subject to Section 5.6, Terasen agrees that it shall not, directly or indirectly, do or and shall not authorize or permit any of its officers, directors or employees subsidiaries or any financial advisorof its or its subsidiaries' Representatives, expert directly or other representative retained by it indirectly, to do, any of the following:
(i) solicit, assist, initiate, encourage or in any way facilitate (facilitate, including by way of furnishing information, information or entering into any form of written or oral agreement, arrangement or understanding) , any Acquisition Proposal inquiries or inquiries, the making of any proposals or offers regarding an Acquisition Proposal;
, (ii) enter into or participate in any discussions or negotiations regarding an any Acquisition Proposal, (iii) withdraw, modify, qualify or furnish change in a manner adverse to any other Person any information with respect Kinder Parties, or publicly propose to its businesseswithdraw, propertiesmodify, operationsqualify or change in a manner advise to the Kinder Parties the approval, prospects recommendation or conditions declaration of advisability of the board of directors of Terasen of the transactions contemplated hereby (financial it being understood that failing to affirm the approval or otherwise) in connection with recommendation of the board of directors of Terasen of the transactions contemplated hereby after an Acquisition Proposal or otherwise cooperate in any way withhas been publicly announced shall be considered an adverse modification), or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waive, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve, agree to, endorse, approve or propose publicly to accept, recommend, approve, agree to, or endorse recommend any Acquisition Proposal or agreement (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or requiring Terasen to abandon, terminate or fail to consummate the Arrangement or providing for the payment of any break, termination or other fees or expenses to any person in respect theretothe event that Terasen or any of its subsidiaries completes the transactions contemplated hereby or any other transaction with Kinder or any of its affiliates agreed to prior to any termination of this Agreement. Notwithstanding the preceding sentence and any other provisions of this Agreement, the board of directors of Terasen may, prior to the approval of the Arrangement by the Terasen Securityholders, consider, participate in any discussions or negotiations with, or provide information in accordance with the last sentence of this paragraph to, any person who has delivered a bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement and did not otherwise result from a breach of this Section 5.5 and that the board of directors of Terasen determines in good faith, after consultation with its financial advisors and outside legal counsel, is a Superior Proposal; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to taking any such action, (x) the Storm Meeting:
board of directors of Terasen must receive written advice of outside counsel that it is necessary for the board of directors of Terasen to take such action in order to discharge properly its fiduciary duties, and (vy) enter into Terasen must obtain a confidentiality agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement, and on terms no more favourable to such person than the Confidentiality Agreement including a standstill provision at least as stringent as contained in the Confidentiality Agreement; provided further that Terasen shall not commence or participate in any discussions or negotiations with, or provide information to any person who has delivered an unsolicited bona fide written Acquisition Proposal until 48 hours after Terasen shall have advised Kinder of its determination that such Acquisition Proposal would, if completed, constitute a Superior Proposal and of its intention to take such actions. Terasen shall not consider, negotiate, accept, approve or recommend an Acquisition Proposal or provide information to any person proposing an Acquisition Proposal, in each case after the date of the approval of the Arrangement by the Terasen Securityholders. If Terasen receives a request for material non-public information from a person who has made an unsolicited bona fide written Acquisition Proposal and Terasen is permitted, as contemplated under the second sentence of this Section 5.5(b), to negotiate the terms of such Acquisition Proposal, then, and only in such case, the board of directors of Terasen may, subject to the execution by such person of the confidentiality agreement as described in (y) above, provide such person with access to information regarding Terasen; provided that Terasen sends a copy of any such confidentiality agreement to Kinder promptly upon its execution and Kinder is provided with a third party who list of, and copies of, the information provided to such person and is immediately provided with access to similar information to which such person was provided.
(without any solicitation, initiation or encouragement, directly or indirectly, c) From and after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that:
(A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and
(B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC.
(c) Storm Terasen shall promptly (and in any event within 24 hours) notify ARC (Kinder, at first orally and then in writing) , of any inquiries, proposals or offers relating to or constituting an Acquisition Proposal (or any amendment thereto) Proposal, or any request for non-public information relating to Storm, its subsidiaries or assets, Terasen or any amendments to the foregoingof its subsidiaries. Such notice shall include a copy of any written Acquisition Proposal (and any amendment thereto) which has been received or, if no written Acquisition Proposal has been received, a description of the material terms and conditions ofof any proposal, and inquiry or offer, the identity of the Person person making any inquiry, such proposal, inquiry or offer or request. Storm shall also and provide such further and other details of the Acquisition Proposal proposal, inquiry or any amendment thereto offer as ARC Kinder may reasonably request. Storm Terasen shall keep ARC promptly and Kinder fully informed on a prompt basis of the status, including any change to the material terms, of any Acquisition Proposal or any amendment thereto, shall respond promptly to all inquiries by ARC with respect thereto, and shall provide ARC copies of all material correspondence and other written material sent to or provided to Storm by any Person in connection with such inquiry, proposal, offer proposal or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or requestoffer.
(d) Storm Nothing contained in Section 5.1(d) or 5.5(b) shall give ARCprohibit the board of directors of Terasen from withdrawing, orally and in writingmodifying, at least two (2) Business Days advance notice of any decision by the Storm Board of Directors to accept, recommend, approve qualifying or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change changing its recommendation to the Terasen Securityholders in respect of the Arrangement. In additiontransactions contemplated hereby prior to the approval of the Arrangement by the Terasen Securityholders, during such two (2) Business Day period Storm shallif the board of directors of Terasen determines, and shall cause its financial and legal advisors to, negotiate in good faith with ARC and its financial and legal advisors to make (after receiving written advice of outside counsel) that such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day periodwithdrawal, the Storm Board of Directors shall not acceptmodification, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify qualification or change is necessary for the board of directors of Terasen to act in a manner consistent with its recommendation fiduciary duties or applicable Laws; provided that (i) not less than 48 hours before the board of directors of Terasen considers any proposal in respect of any such withdrawal, modification, qualification or change, Terasen shall give Kinder written notice of such proposal and promptly advise Kinder of the Arrangementproposed consideration of such proposal, including a summary of the reasons for the proposal withdrawal, modification, qualification or change, a copy of the written opinion of outside counsel and all other materials to be presented to the board of directors of Terasen in respect of its consideration of such proposal, and (ii) the foregoing shall not relieve Terasen from its obligation to proceed to call and hold the Terasen Meeting and to hold the vote on the Terasen Resolutions, except in circumstances where this Agreement is terminated in accordance with the terms hereof.
(e) Storm Terasen shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal.
(f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that its officers, directors and employees and its subsidiaries and their respective officers, directors and employees and any investment bankers financial advisors or other advisers advisors or representatives retained by it are aware of the provisions of this Section 3.5 5.5, and it shall be responsible for any breach of this Section 3.5 5.5 by any of themsuch officers, directors, employees, financial advisors or other advisors or representatives.
(h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
Appears in 1 contract
Covenants Regarding Non-Solicitation. (a) Storm Westcoast shall immediately cease and cause to be terminated all any existing discussions and negotiations (includingsolicitation, without limitationencouragement, through any advisors activity, discussion or other parties on its behalf), negotiation with any parties (other than ARC) conducted before the date of this Agreement with respect to any proposal that constitutesby Westcoast, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm shall not modify or release any third party from any existing confidentiality agreement (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish subsidiaries or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require the return or destruction of all confidential information provided to any third parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights to require) the destruction of all material including or incorporating or otherwise reflecting any material confidential information regarding Storm and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its subsidiaries' officers, directors, employees, representatives and agents with respect to an Acquisition Proposal whether or not initiated by Westcoast and in connection therewith, Westcoast shall be deemed request (and exercise all rights it has to be a breach require) the return of this Section 3.5(ainformation regarding Westcoast and its subsidiaries previously provided to such parties and shall request (and exercise all rights it has to require) by Stormthe destruction of all materials including or incorporating any information regarding Westcoast and its subsidiaries.
(b) Storm Subject to Section 5.6, Westcoast agrees that it shall not, directly or indirectly, do or and shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' officers, directors directors, employees, representatives or employees agents, directly or any financial advisorindirectly, expert or other representative retained by it to do, any of the following:
(i) solicit, assist, initiate, encourage or in any way facilitate (knowingly facilitate, including by way of furnishing information, information or entering into any form of written or oral agreement, arrangement or understanding) , any Acquisition Proposal inquiries or inquiries, the making of any proposals or offers regarding an Acquisition Proposal;
, (ii) enter into or participate in any discussions or negotiations regarding an any Acquisition Proposal, or furnish to any other Person any information with respect to its businesses, properties, operations, prospects or conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waivewithdraw or modify in a manner adverse to Duke Energy the approval or recommendation of the Board of Directors of Westcoast of the transactions contemplated hereby, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve, agree to, endorse, approve or propose publicly to accept, recommend, approve, agree to, or endorse recommend any Acquisition Proposal or agreement (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or requiring Westcoast to abandon, terminate or fail to consummate the Arrangement or providing for the payment of any break, termination or other fees or expenses to any person in respect theretothe event that Westcoast or any of its subsidiaries completes the transactions contemplated hereby or any other transaction with Duke Energy or any of its affiliates agreed to prior to any termination of this Agreement. Notwithstanding the preceding sentence and any other provisions of this Agreement, the Board of Directors of Westcoast may, prior to the approval of the Arrangement by the Westcoast Securityholders, consider, participate in any discussions or negotiations with, or provide information in accordance with the last sentence of this paragraph to, any person who has delivered a bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement and did not otherwise result from a breach of this Section 5.5 and that the Board of Directors of Westcoast determines in good faith, after consultation with its financial advisors and outside legal counsel, is a Superior Proposal; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to taking any such action, (x) the Storm Meeting:
Board of Directors of Westcoast must receive written advice of outside counsel that it is necessary for the Board of Directors of Westcoast to take such action in order to discharge properly its fiduciary duties and (vy) enter into or participate Westcoast must obtain a confidentiality agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement, including a standstill provision at least as stringent as contained in any the Confidentiality Agreement; provided further that Westcoast shall not commence discussions or negotiations with, or provide information to any person who has delivered an unsolicited bona fide written Acquisition Proposal until 48 hours after Westcoast shall have advised Duke Energy of its determination that such Acquisition Proposal constitutes a Superior Proposal AMENDED AND RESTATED COMBINATION AGREEMENT 51 and of its intention to take such actions. Westcoast shall not consider, negotiate, accept, approve or recommend an Acquisition Proposal or provide information to any person proposing an Acquisition Proposal, in each case after the date of the approval of the Arrangement by the Westcoast Securityholders. If Westcoast receives a request for material non-public information from a person who has made an unsolicited bona fide written Acquisition Proposal and Westcoast is permitted, as contemplated under the second sentence of this Section 5.5(b), to negotiate the terms of such Acquisition Proposal, then, and only in such case, the Board of Directors of Westcoast may, subject to the execution by such person of the confidentiality agreement as described in (y) above, provide such person with access to information regarding Westcoast; provided that Westcoast sends a copy of any such confidentiality agreement to Duke Energy promptly upon its execution and Duke Energy is provided with a third party who list of, and copies of, the information provided to such person and is immediately provided with access to similar information to which such person was provided.
(without any solicitation, initiation or encouragement, directly or indirectly, c) From and after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that:
(A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and
(B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC.
(c) Storm Westcoast shall promptly (and in any event within 24 hours) notify ARC (Duke Energy, at first orally and then in writing) , of any inquiries, proposals or offers relating to or constituting an Acquisition Proposal (or any amendment thereto) Proposal, or any request for non-public information relating to Storm, its subsidiaries or assets, Westcoast or any amendments to the foregoingof its subsidiaries. Such notice shall include a copy of any written Acquisition Proposal (and any amendment thereto) which has been received or, if no written Acquisition Proposal has been received, a description of the material terms and conditions ofof any proposal, and inquiry or offer, the identity of the Person person making any inquiry, such proposal, inquiry or offer or request. Storm shall also and provide such further and other details of the Acquisition Proposal proposal, inquiry or any amendment thereto offer as ARC Duke Energy may reasonably request. Storm Westcoast shall keep ARC promptly and Duke Energy fully informed on a prompt basis of the status, including any change to the material terms, of any Acquisition Proposal or any amendment thereto, shall respond promptly to all inquiries by ARC with respect thereto, and shall provide ARC copies of all material correspondence and other written material sent to or provided to Storm by any Person in connection with such inquiry, proposal, offer proposal or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or requestoffer.
(d) Storm Westcoast shall give ARCensure that its officers, orally directors and in writing, at least two (2) Business Days advance notice of any decision by the Storm Board of Directors to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. In addition, during such two (2) Business Day period Storm shall, and shall cause its financial and legal advisors to, negotiate in good faith with ARC employees and its financial subsidiaries and legal advisors to make such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day period, the Storm Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement.
(e) Storm shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal.
(f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that their respective officers, directors and employees and any investment bankers financial advisors or other advisers advisors or representatives retained by it are aware of the provisions of this Section 3.5 5.5, and it shall be responsible for any breach of this Section 3.5 5.5 by any of themsuch officers, directors, employees, financial advisors or other advisors or representatives.
(h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
Appears in 1 contract
Covenants Regarding Non-Solicitation. (a) Storm shall immediately cease W&R and cause to be terminated all existing discussions and negotiations (including, without limitation, through any advisors or other parties on its behalf), with any parties (other than ARC) conducted before the date of this Agreement with respect to any proposal that constitutes, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm shall not modify or release any third party from any existing confidentiality agreement (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require the return or destruction of all confidential information provided to any third parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights to require) the destruction of all material including or incorporating or otherwise reflecting any material confidential information regarding Storm and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its officers, directors, employees, representatives and agents shall be deemed to be a breach of this Section 3.5(a) by Storm.
(b) Storm AST shall not, directly or indirectly, do through any partner, member, manager, director, employee, representative or authorize agent of W&R or permit any of its officersAST, directors or employees or any financial advisor, expert or other representative retained by it to do, any of the following:
(i) solicit, assist, initiate, initiate or knowingly encourage or in any way facilitate (including by way of furnishing information, information or entering into any form of written or oral agreement, arrangement or understanding) the initiation of any Acquisition Proposal inquiries or inquiries, proposals or offers regarding an Acquisition Proposal;
, (ii) enter into or participate in any discussions or negotiations regarding an any Acquisition Proposal, or furnish to any other Person any information with respect to its businesses, properties, operations, prospects or conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waivewithdraw or modify in a manner adverse to eLandia the approval of the Board of Managers of AST of the transactions contemplated hereby, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve, agree to, endorse, approve or propose publicly to accept, recommend, approve, agree to, or endorse recommend any Acquisition Proposal or agreement in respect thereto; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to the Storm Meeting:
(v) cause W&R or AST to enter into or participate in any discussions or negotiations with a third party who (without agreement related to any solicitation, initiation or encouragement, directly or indirectly, after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that:
(A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and
(B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC.
(cb) Storm W&R shall promptly (and in any event within 24 hours) notify ARC (eLandia, at first orally and then in writing) , of any all current Acquisition Proposal (Proposals, and of all future Acquisition Proposals, of which the Board of Managers of AST or General Partner of W&R are or become aware, or any amendment thereto) amendments to the foregoing, or any request for non-public information relating to StormAST or W&R in connection with an Acquisition Proposal or for access to the properties, its subsidiaries books or assetsrecords of AST or W&R by any Person that informs W&R or AST that it is considering making, or any amendments to the foregoinghas made, an Acquisition Proposal. Such notice shall include a copy of any written Acquisition Proposal (and any amendment thereto) which has been received or, if no written Acquisition Proposal has been received, a description of the material terms and conditions ofof any proposal and provide such details of the proposal, and inquiry or contact as eLandia may reasonably request including the identity of the Person making any inquiry, such proposal, offer inquiry or request. Storm shall also provide such further and other details of the Acquisition Proposal or any amendment thereto as ARC may reasonably request. Storm shall keep ARC promptly and fully informed of the status, including any change to material terms, of any Acquisition Proposal or any amendment thereto, shall respond promptly to all inquiries by ARC with respect thereto, and shall provide ARC copies of all material correspondence and other written material sent to or provided to Storm by any Person in connection with such inquiry, proposal, offer or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or requestcontact.
(dc) Storm W&R shall give ARC, orally and in writing, at least two (2) Business Days advance notice of any decision by the Storm Board of Directors to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. In addition, during such two (2) Business Day period Storm shall, and shall cause its financial and legal advisors to, negotiate in good faith with ARC and its financial and legal advisors to make such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day period, the Storm Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement.
(e) Storm shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal.
(f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that their respective its officers, directors and employees employees, and any investment bankers financial advisors or other advisers advisors or representatives retained by it any of them are aware of the provisions of this Section 3.5 5.5, and W&R shall be responsible for any breach of this Section 3.5 5.5 by any of themits financial advisors or other advisors or representatives.
(h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
Appears in 1 contract
Samples: Merger Agreement (Elandia, Inc.)
Covenants Regarding Non-Solicitation. (a) Storm QOEG shall immediately cease not, directly or indirectly, through any officer or director of QOEG or any of its subsidiaries, and shall use its reasonable best efforts to cause its and its subsidiaries’ employees, agents and representatives (including any investment banker, lawyer or accountant) not to(i) solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information or entering into any form of agreement, arrangement or understanding) the initiation of any inquiries or proposals regarding an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or provide any confidential information with respect to, any Acquisition Proposal, (iii) approve or recommend any Acquisition Proposal or (iv) accept or enter into any agreement, arrangement or understanding related to any Acquisition Proposal. Notwithstanding the preceding part of this Section 4.5(a) and any other provision of this Agreement, nothing shall prevent the Board of Directors of QOEG from complying with QOEG’s disclosure obligations under applicable Laws with regard to an Acquisition Proposal or from considering, participating in any discussions or negotiations, or entering into a confidentiality agreement and providing information pursuant to Section 4.5(c) (but, subject to Section 4.6, not approve, recommend, accept or enter into any agreement, arrangement or understanding), regarding an unsolicited bona fide written Acquisition Proposal (A) in respect of which any required financing has been demonstrated to the satisfaction of the Board of Directors of QOEG, acting in good faith, to be terminated reasonably likely to be obtained, (B) that did not otherwise result from a breach of this Section 4.5, and (C) which the Board of Directors of QOEG has determined in good faith, after consultation with financial advisors and with outside counsel, is a Superior Proposal. QOEG shall, and shall cause the officers, directors, employees, representatives and agents of QOEG and its subsidiaries to, cease immediately all existing current discussions and negotiations (including, without limitation, through any advisors or other parties on its behalf), with any parties (other than ARC) conducted before the date of this Agreement with respect to regarding any proposal that constitutes, or may reasonably be expected to constitute or lead to to, an Acquisition Proposal. Storm shall not modify or release any third party from any existing confidentiality agreement (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require request the return or destruction of all confidential information provided to any third parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights to require) the destruction of all material including or incorporating or otherwise reflecting any material confidential information regarding Storm and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its officers, directors, employees, representatives and agents shall be deemed to be a breach of this Section 3.5(a) by Stormconnection therewith.
(b) Storm QOEG shall notforthwith notify ADGS, directly or indirectly, do or authorize or permit any of its officers, directors or employees or any financial advisor, expert or other representative retained by it to do, any of the following:
(i) solicit, assist, initiate, encourage or in any way facilitate (including by way of furnishing information, or entering into any form of written or oral agreement, arrangement or understanding) any Acquisition Proposal or inquiries, proposals or offers regarding an Acquisition Proposal;
(ii) enter into or participate in any discussions or negotiations regarding an Acquisition Proposal, or furnish to any other Person any information with respect to its businesses, properties, operations, prospects or conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waive, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve, agree to, endorse, or propose publicly to accept, recommend, approve, agree to, or endorse any Acquisition Proposal or agreement in respect thereto; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to the Storm Meeting:
(v) enter into or participate in any discussions or negotiations with a third party who (without any solicitation, initiation or encouragement, directly or indirectly, after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that:
(A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and
(B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC.
(c) Storm shall promptly (and in any event within 24 hours) notify ARC (at first orally and then in writing) , of any Acquisition Proposal (and any inquiry that could lead to an Acquisition Proposal, or any amendment thereto) amendments to the foregoing, or any request for non-public information relating to StormQOEGE or any QOEG Material Subsidiary in connection with an Acquisition Proposal or for access to the properties, its subsidiaries books or assetsrecords of QOEG or any QOEG Material Subsidiary by any Person that informs QOEG or such QOEG Material Subsidiary that it is considering making, or any amendments to the foregoinghas made, an Acquisition Proposal. Such notice shall include a copy of any written Acquisition Proposal (and any amendment thereto) which has been received or, if no written Acquisition Proposal has been received, a description of the material terms and conditions ofof any proposal, and the identity of the Person making any inquiry, such proposal, offer inquiry or request. Storm shall also contact and provide such further and other details of the Acquisition Proposal proposal, inquiry, contact, discussions or any amendment thereto negotiations as ARC ADGS may reasonably request. Storm QOEG shall keep ARC promptly and fully ADGS informed of the status, status including any change to the material terms, terms of any such Acquisition Proposal or inquiry.
(c) If QOEG receives a request for material non-public information from a Person who has made an unsolicited bona fide written Acquisition Proposal and QOEG is permitted, subject to and as contemplated under the second sentence of Section 4.5(a), to negotiate the terms of such Acquisition Proposal, then, and only in such case, the Board of Directors of QOEG may, subject to the execution by such Person of a confidentiality agreement containing employee non-solicitation and standstill provisions substantially similar to those contained in the confidentiality agreement then in effect between QOEG and ADGS, provide such Person with access to information regarding QOEG; provided, however, that the Person making the Acquisition Proposal shall not be precluded under such confidentiality agreement from making the Acquisition Proposal (but not, except subject to Section 4.6(d), any material amendment thereto, shall respond ) and provided further that QOEG sends a copy of any such confidentiality agreement to ADGS promptly to all inquiries by ARC upon its execution and ADGS is provided with respect thereto, and shall provide ARC a list of or copies of all material correspondence and other written material sent to or the information provided to Storm by any such Person in connection and immediately provided with access to similar information to which such inquiry, proposal, offer or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or requestwas provided.
(d) Storm QOEG shall give ARCensure that its officers, orally directors and in writing, at least two (2) Business Days advance notice of any decision by the Storm Board of Directors to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. In addition, during such two (2) Business Day period Storm shall, and shall cause its financial and legal advisors to, negotiate in good faith with ARC employees and its financial subsidiaries and legal advisors to make such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day period, the Storm Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement.
(e) Storm shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal.
(f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that their respective officers, directors and employees and any investment bankers financial advisors or other advisers advisors or representatives retained by it or its subsidiaries are aware of the provisions of this Section 3.5 4.6, and it shall be responsible for any breach of this Section 3.5 4.5 by any of themits and its subsidiaries’ officers, directors, employees, representatives or agents.
(h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
Appears in 1 contract
Samples: Merger Agreement (Quality Online Education Group Inc.)
Covenants Regarding Non-Solicitation. (a) Storm Xxxxxxxx shall, and shall direct and cause its Representatives and its Subsidiaries and their Representatives to immediately cease and cause to be terminated all existing discussions and negotiations (includingany solicitation, without limitationencouragement, through any advisors activity, discussion or other parties on its behalf), negotiation with any parties (other than ARC) conducted before the date of this Agreement that may be ongoing with respect to any proposal that constitutes, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm Proposal whether or not initiated by Xxxxxxxx and in connection therewith, Xxxxxxxx shall not modify or release any third party from any existing confidentiality agreement request (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require require) the return or destruction of all confidential information regarding Xxxxxxxx and its Subsidiaries previously provided to any third such parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights it has to require) the destruction of all material materials including or incorporating or otherwise reflecting any material confidential information Confidential Information regarding Storm Xxxxxxxx and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its officers, directors, employees, representatives and agents shall be deemed to be a breach of this Section 3.5(a) by StormSubsidiaries.
(b) Storm Subject to Section 5.5, Xxxxxxxx agrees that it shall not, directly or indirectly, do or and shall not authorize or permit any of its officers, directors or employees Subsidiaries or any financial advisorof its or its Subsidiaries’ Representatives, expert directly or other representative retained by it indirectly, to do, any of the following:
(i) solicit, assist, initiate, encourage or in any way facilitate (facilitate, including by way of furnishing information, information or entering into any form of written or oral agreement, arrangement or understanding) , any Acquisition Proposal inquiries or inquiries, the making of any proposals or offers regarding an Acquisition Proposal;
, (ii) enter into or participate in any discussions or negotiations regarding an any Acquisition Proposal, (iii) withdraw, modify, qualify or furnish change in a manner adverse to any other Person any information with respect Tarsis, or publicly propose to its businesseswithdraw, propertiesmodify, operationsqualify or change in a manner adverse to Tarsis the approval, prospects recommendation or conditions declaration of advisability of the board of directors of Xxxxxxxx of the transactions contemplated hereby (financial it being understood that failing to affirm the approval or otherwise) in connection with recommendation of the board of directors of Xxxxxxxx of the transactions contemplated hereby after an Acquisition Proposal or otherwise cooperate in any way withhas been publicly announced shall be considered an adverse modification), or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waive, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve, agree to, endorse, approve or propose publicly to accept, recommend, approve, agree to, or endorse recommend any Acquisition Proposal or agreement (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or requiring Xxxxxxxx to abandon, terminate or fail to consummate the Arrangement or providing for the payment of any break, termination or other fees or expenses to any person in respect theretothe event that Xxxxxxxx or any of its Subsidiaries completes the transactions contemplated hereby or any other transaction with Tarsis or any of its affiliates agreed to prior to any termination of this Agreement. Notwithstanding the preceding sentence and any other provisions of this Agreement, the board of directors of Xxxxxxxx may, prior to the approval of the Arrangement by the Xxxxxxxx Shareholders, consider, participate in any discussions or negotiations with, or provide information in accordance with the last sentence of this Section 5.4(b) to, any person who has delivered a bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement and did not otherwise result from a breach of this Section 5.4 and that the board of directors of Xxxxxxxx determines in good faith, after consultation with its financial advisors and outside legal counsel, is a Superior Proposal; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to taking any such action, (a) the Storm Meeting:
board of directors of Xxxxxxxx must determine in good faith, after due consultation with its outside counsel, that its failure to do so would be inconsistent with the exercise of its fiduciary duties, and (vb) enter into Xxxxxxxx must obtain a confidentiality agreement from the person making such Acquisition Proposal, in a form satisfactory to Tarsis acting reasonably; provided further that Xxxxxxxx shall not commence or participate in any discussions or negotiations with, or provide information to any person who has delivered an unsolicited bona fide written Acquisition Proposal until 48 hours after Xxxxxxxx shall have advised Tarsis of its determination that such Acquisition Proposal would, if completed, constitute a Superior Proposal and of its intention to take such actions. Xxxxxxxx shall not consider, negotiate, accept, approve or recommend an Acquisition Proposal or provide information to any person proposing an Acquisition Proposal, in each case after the date of the approval of the Arrangement by the Xxxxxxxx Shareholders. If Xxxxxxxx receives a request for material non-public information from a person who has made an unsolicited bona fide written Acquisition Proposal and Xxxxxxxx is permitted, as contemplated under the second sentence of this Section 5.4(b), to negotiate the terms of such Acquisition Proposal, then, and only in such case, the board of directors of Xxxxxxxx may, subject to the execution by such person of the confidentiality agreement as described in (y) above, provide such person with access to information regarding Xxxxxxxx; provided that Xxxxxxxx sends a copy of any such confidentiality agreement to Tarsis promptly upon its execution and Tarsis is provided with a third party who list of, and copies of, the information provided to such person and is immediately provided with access to similar information to which such person was provided, if not previously provided to Tarsis by Xxxxxxxx.
(without any solicitation, initiation or encouragement, directly or indirectly, c) From and after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that:
(A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and
(B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC.
(c) Storm Xxxxxxxx shall promptly (and in any event within 24 hours) notify ARC (Tarsis, at first orally and then in writing) , of any inquiries, proposals or offers relating to or constituting an Acquisition Proposal (or any amendment thereto) Proposal, or any request for non-public information relating to Storm, its subsidiaries or assets, Xxxxxxxx or any amendments to the foregoingof its Subsidiaries. Such notice shall include a description of the terms and conditions of any proposal, inquiry or offer, the identity of the person making such proposal, inquiry or offer, a copy of any written Acquisition Proposal (and any amendment thereto) which has been received orproposal, if no written Acquisition Proposal has been received, a description of the material terms and conditions ofinquiry or offer, and the identity of the Person making any inquiry, proposal, offer or request. Storm shall also provide such further and other details of the Acquisition Proposal proposal, inquiry or any amendment thereto offer as ARC Tarsis may reasonably request. Storm Xxxxxxxx shall keep ARC promptly and Tarsis fully informed on a prompt basis of the status, including any change to the material terms, of any Acquisition Proposal or any amendment thereto, shall respond promptly to all inquiries by ARC with respect thereto, and shall provide ARC copies of all material correspondence and other written material sent to or provided to Storm by any Person in connection with such inquiry, proposal, offer proposal or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or requestoffer.
(d) Storm Xxxxxxxx shall give ARCensure that its officers, orally directors and in writing, at least two (2) Business Days advance notice of any decision by the Storm Board of Directors to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. In addition, during such two (2) Business Day period Storm shall, and shall cause its financial and legal advisors to, negotiate in good faith with ARC employees and its financial Subsidiaries and legal advisors to make such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day period, the Storm Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement.
(e) Storm shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal.
(f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that their respective officers, directors and employees and any investment bankers financial advisors or other advisers advisors or representatives retained by it are aware of the provisions of this Section 3.5 5.4, and it shall be responsible for any breach of this Section 3.5 5.4 by any of themsuch officers, directors, employees, financial advisors or other advisors or representatives.
(h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
Appears in 1 contract
Covenants Regarding Non-Solicitation. (a) Storm Westcoast shall immediately cease and cause to be terminated all any existing discussions and negotiations (includingsolicitation, without limitationencouragement, through any advisors activity, discussion or other parties on its behalf), negotiation with any parties (other than ARC) conducted before the date of this Agreement with respect to any proposal that constitutesby Westcoast, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm shall not modify or release any third party from any existing confidentiality agreement (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access to any of its confidential information (and not establish subsidiaries or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require the return or destruction of all confidential information provided to any third parties who have entered into a confidentiality agreement with Storm relating to an Acquisition Proposal and shall request (and exercise all rights to require) the destruction of all material including or incorporating or otherwise reflecting any material confidential information regarding Storm and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its subsidiaries' officers, directors, employees, representatives and agents with respect to an Acquisition Proposal whether or not initiated by Westcoast and in connection therewith, Westcoast shall be deemed request (and exercise all rights it has to be a breach require) the return of this Section 3.5(ainformation regarding Westcoast and its subsidiaries previously provided to such parties and shall request (and exercise all rights it has to require) by Storm.the destruction of all materials including or incorporating any information regarding Westcoast and its subsidiaries. COMBINATION AGREEMENT 50 55
(b) Storm Subject to Section 5.6, Westcoast agrees that it shall not, directly or indirectly, do or and shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' officers, directors directors, employees, representatives or employees agents, directly or any financial advisorindirectly, expert or other representative retained by it to do, any of the following:
(i) solicit, assist, initiate, encourage or in any way facilitate (knowingly facilitate, including by way of furnishing information, information or entering into any form of written or oral agreement, arrangement or understanding) , any Acquisition Proposal inquiries or inquiries, the making of any proposals or offers regarding an Acquisition Proposal;
, (ii) enter into or participate in any discussions or negotiations regarding an any Acquisition Proposal, or furnish to any other Person any information with respect to its businesses, properties, operations, prospects or conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waivewithdraw or modify in a manner adverse to Duke Energy the approval or recommendation of the Board of Directors of Westcoast of the transactions contemplated hereby, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve, agree to, endorse, approve or propose publicly to accept, recommend, approve, agree to, or endorse recommend any Acquisition Proposal or agreement (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or requiring Westcoast to abandon, terminate or fail to consummate the Arrangement or providing for the payment of any break, termination or other fees or expenses to any person in respect theretothe event that Westcoast or any of its subsidiaries completes the transactions contemplated hereby or any other transaction with Duke Energy or any of its affiliates agreed to prior to any termination of this Agreement. Notwithstanding the preceding sentence and any other provisions of this Agreement, the Board of Directors of Westcoast may, prior to the approval of the Arrangement by the Westcoast Securityholders, consider, participate in any discussions or negotiations with, or provide information in accordance with the last sentence of this paragraph to, any person who has delivered a bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement and did not otherwise result from a breach of this Section 5.5 and that the Board of Directors of Westcoast determines in good faith, after consultation with its financial advisors and outside legal counsel, is a Superior Proposal; provided, however, that notwithstanding any other provision hereof, Storm and its officers, directors and advisers may prior to taking any such action, (x) the Storm Meeting:
Board of Directors of Westcoast must receive written advice of outside counsel that it is necessary for the Board of Directors of Westcoast to take such action in order to discharge properly its fiduciary duties and (vy) enter into or participate Westcoast must obtain a confidentiality agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement, including a standstill provision at least as stringent as contained in any the Confidentiality Agreement; provided further that Westcoast shall not commence discussions or negotiations with, or provide information to any person who has delivered an unsolicited bona fide written Acquisition Proposal until 48 hours after Westcoast shall have advised Duke Energy of its determination that such Acquisition Proposal constitutes a Superior Proposal and of its intention to take such actions. Westcoast shall not consider, negotiate, accept, approve or recommend an Acquisition Proposal or provide information to any person proposing an Acquisition Proposal, in each case after the date of the approval of the Arrangement by the Westcoast Securityholders. If Westcoast receives a request for material non-public information from a person who has made an unsolicited bona fide written Acquisition Proposal and Westcoast is permitted, as contemplated under the second sentence of this Section 5.5(b), to negotiate the terms of such Acquisition Proposal, then, and only in such case, the Board of Directors of Westcoast may, subject to the execution by such person of the confidentiality agreement as described in (y) above, provide such person with access to information regarding Westcoast; provided that Westcoast sends a copy of any such confidentiality agreement to Duke Energy promptly upon its execution and Duke Energy is provided with a third party who list of, and copies of, the information provided to such person and is immediately provided with access to similar information to which such person was provided.
(without any solicitation, initiation or encouragement, directly or indirectly, c) From and after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below), may furnish to such third party information concerning Storm and its business, properties and assets, in each case if, and only to the extent that:
(A) the third party has first made a written bona fide Acquisition Proposal which is a Superior Proposal; and
(B) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third party, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected in minutes of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(d) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARC.
(c) Storm Westcoast shall promptly (and in any event within 24 hours) notify ARC (Duke Energy, at first orally and then in writing) , of any inquiries, proposals or offers relating to or constituting an Acquisition Proposal (or any amendment thereto) Proposal, or any request for non-public information relating to Storm, its subsidiaries or assets, Westcoast or any amendments to the foregoingof its subsidiaries. Such notice shall include a copy of any written Acquisition Proposal (and any amendment thereto) which has been received or, if no written Acquisition Proposal has been received, a description of the material terms and conditions ofof any proposal, and inquiry or offer, the identity of the Person person making any inquiry, such proposal, inquiry or offer or request. Storm shall also and provide such further and other details of the Acquisition Proposal proposal, inquiry or any amendment thereto offer as ARC Duke Energy may reasonably request. Storm Westcoast shall keep ARC promptly and Duke Energy fully informed on a prompt basis of the status, including any change to the material terms, of any Acquisition Proposal or any amendment thereto, shall respond promptly to all inquiries by ARC with respect thereto, and shall provide ARC copies of all material correspondence and other written material sent to or provided to Storm by any Person in connection with such inquiry, proposal, offer proposal or request or sent or provided by Storm to any Person in connection with such inquiry, proposal, offer or requestoffer.
(d) Storm Westcoast shall give ARCensure that its officers, orally directors and in writing, at least two (2) Business Days advance notice of any decision by the Storm Board of Directors to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the third party making the Superior Proposal and provide a copy thereof and any amendments thereto. During the two (2) Business Day period commencing on the delivery of such notice, Storm agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. In addition, during such two (2) Business Day period Storm shall, and shall cause its financial and legal advisors to, negotiate in good faith with ARC employees and its financial subsidiaries and legal advisors to make such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC to proceed with the Arrangement as amended rather than the Superior Proposal. In the event ARC proposes to amend this Agreement and the Arrangement such that the Superior Proposal ceases to be a Superior Proposal and so advises the Storm Board prior to the expiry of such two (2) Business Day period, the Storm Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement.
(e) Storm shall reaffirm its recommendation of the Arrangement by press release promptly and in any event within five Business Days of any written request to do so by ARC (or, in the event that the Storm Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposal.
(f) ARC agrees that all information that may be provided to it by Storm with respect to any Acquisition Proposal pursuant to this Section 3.5 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that their respective officers, directors and employees and any investment bankers financial advisors or other advisers advisors or representatives retained by it are aware of the provisions of this Section 3.5 5.5, and it shall be responsible for any breach of this Section 3.5 5.5 by any of themsuch officers, directors, employees, financial advisors or other advisors or representatives.
(h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
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Covenants Regarding Non-Solicitation. (a) Storm Westaim shall immediately cease terminate and cause to be terminated all existing solicitations, initiations, encouragements, discussions and or negotiations (including, without limitation, through any advisors or other parties on its behalf), with any parties (other than ARC) conducted before prior to the date hereof by either of this Agreement them, or their respective officers, directors, employees, financial advisors, legal counsel, representatives or agents, with respect to any proposal that constitutes, or may reasonably be expected to constitute or lead to an Acquisition Proposal. Storm Westaim shall not modify promptly send or release any third party from any existing confidentiality agreement (including, for greater certainty, any existing standstill provisions). Storm shall discontinue access cause to any of its confidential information (and not establish or allow access be sent a letter to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so and exercise all rights it has to require the return or destruction of all confidential information provided to any third parties who have entered into a confidentiality agreement agreements with Storm relating it in connection with the process giving rise to an Acquisition Proposal and shall request (and exercise this Agreement, requiring all rights materials provided to require) the destruction of all material including such parties by it to be destroyed or incorporating returned to it or otherwise reflecting any material confidential information regarding Storm its agents or advisors and shall use all reasonable commercial efforts to ensure that such requests are honoured. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.5(a) by Storm or its officers, directors, employees, representatives and agents shall be deemed to be a breach of this Section 3.5(a) by Storm.
(b) Storm Subject to Subsections 10.3(c), (d) and (e) below, Westaim shall not, directly or indirectly, do or authorize or permit through any of its officersSubsidiaries or through any officer, directors or employees or any financial advisordirector, expert employee, investment banker, lawyer or other representative retained by or agent of it to do, or any of the followingits Subsidiaries:
(i) solicit, assist, initiate, invite, knowingly facilitate or knowingly encourage or in any way facilitate (including by way of furnishing information, confidential information or entering into any form of written or oral agreement, arrangement or understanding) the initiation of or participation in, any Acquisition Proposal inquiries or inquiries, proposals or offers regarding an Acquisition Proposal;
(ii) enter into or participate in any discussions or negotiations regarding an Acquisition Proposal, or furnish to any other Person any information with respect to its businesses, properties, operations, prospects or conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the foregoing;
(iii) waivewithdraw or modify or propose publicly to withdraw or modify, in any manner adverse to the Companies, the approval of its board of directors of the Reorganization or the recommendation of its board of directors to vote in favour of the Westaim Reorganization Resolutions;
(iv) furnish or provide access to any information concerning it, its Subsidiaries or their respective businesses, properties or assets to any Person in connection with, or otherwise forbear in the enforcement ofthat could reasonably be expected to lead to or facilitate, an Acquisition Proposal;
(v) waive any provisions of or release or terminate any confidentiality or standstill agreement between it and any Person relating to an actual or potential Acquisition Proposal, or enter into amend any such agreement or participate consent to the making of an Acquisition Proposal in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits under confidential information agreements, including, without limitation, any “standstill provisions” thereunderaccordance with the terms of such agreement; or
(ivvi) accept, recommend, approve, agree to, endorse, approve or enter into or propose publicly to accept, recommend, approveapprove or enter into any agreement, agree to, arrangement or endorse understanding (other than a confidentiality agreement as permitted hereunder) related to any Acquisition Proposal or agreement in respect thereto; providedProposal.
(c) Notwithstanding Subsection 10.3(b) above, howeverprior to the Time of Closing, that notwithstanding any other provision hereof, Storm Westaim and its officers, directors and advisers directors, employees, advisors or other representatives or agents may prior to the Storm Meeting:
(v) enter into into, or participate in in, any discussions or negotiations with a third party Person who (without any solicitation, initiation or encouragement, directly or indirectly, after the date of this Agreement, by Storm or any of its officers, directors or employees or any financial advisor, expert or other representative retained by it) seeks to initiate such discussions or negotiations with Storm that does not result from a breach of this Section 3.5 and, subject to execution the entering into by such Person of a confidentiality and standstill agreement substantially similar to the Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to ARC as set out below)Agreement, may furnish to such third party Person information concerning Storm it and its business, properties and assets, in each case if, and only to the extent that:
(Ai) the third party such Person has first made a written an unsolicited bona fide Acquisition Proposal which is the Westaim Board determines in good faith (after consultation with its financial advisors) would, if consummated in accordance with its terms, be reasonably likely to result in, a Superior Proposal; and;
(Bii) prior to furnishing such information to or entering into or participating in any such discussions or negotiations with such third partythe Westaim Board, Storm provides prompt notice to ARC to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such Person together with a copy of the confidentiality agreement referenced above and, if not previously provided to ARC, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that Storm shall notify ARC orally and in writing of any inquiries, offers or proposals with respect to a Superior Proposal (which written notice shall include, without limitation, a copy of any such proposal (and any amendments or supplements thereto), the identity of the Person making it, if not previously provided to ARC, copies of all information provided to such party and all other information reasonably requested by ARC), within 24 hours of the receipt thereof, shall keep ARC informed of the status and details of any such inquiry, offer or proposal and answer ARC’s questions with respect thereto; and
(vi) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Storm Board of Directors shall have concluded in good faith, after considering all proposals to adjust the terms and conditions of this Agreement as contemplated by Section 3.5(d) and after receiving the advice of outside counsel as reflected legal counsel, has determined in minutes good faith that the failure to take such action would be inconsistent with its fiduciary duties; and
(iii) it has provided to the Companies the information required to be provided under Subsections 10.3(d) and (e) in respect of such Acquisition Proposal and has promptly notified the Companies in writing of the Storm Board of Directors, that the taking of such action is necessary for the Storm Board of Directors determinations in discharge of its fiduciary duties under applicable laws and Storm complies with its obligations set forth in Section 3.5(dparagraphs 10.3(c)(i)and (ii) and terminates this Agreement in accordance with Section 9.1(a)(iv) and concurrently therewith pays the ARC Termination Fee to ARCabove.
(cd) Storm Westaim shall promptly (and in any event within 24 hours) notify ARC (the Companies, at first orally and then in writing) , of any Acquisition Proposal (received after the date hereof, or any amendment thereto) confidentiality agreement entered into in respect of any such Acquisition Proposal and any inquiry or contact received after the date hereof that could reasonably be expected to lead to an Acquisition Proposal, or any request for non-public information relating to Stormit received after the date hereof or for access to its properties, its subsidiaries books or assetsrecords by any Person that informs it that it is considering making, or has made, an Acquisition Proposal after the date hereof; which notice will include any amendments to the foregoing. Such notice shall include a copy known terms and conditions of any written such Acquisition Proposal (including any form of agreement proposed to be entered into) and any amendment thereto) which has been received orshall indicate such details, if no written Acquisition Proposal has been receivedto the extent known, a description of the material terms and conditions ofAcquisition Proposal, and inquiry or contact as the Companies may reasonably request, including the identity of the Person making any inquiry, such proposal, offer inquiry or requestcontact. Storm shall also provide such further and other details of the Acquisition Proposal or any amendment thereto as ARC may reasonably request. Storm Westaim shall keep ARC promptly and fully the Companies informed of the status, including any change to the material terms, of any such Acquisition Proposal or any amendment theretoinquiry. In addition, shall respond promptly to all inquiries by ARC with respect thereto, and Westaim shall provide ARC copies of all material correspondence and other written material sent the Companies with access to or any information provided to Storm by any such Person in connection with such inquiry, proposal, offer or request or sent or respect of which a confidentiality agreement is entered into in respect of any Acquisition Proposal which has not already been provided by Storm to any Person in connection with such inquiry, proposal, offer or requestthe Companies.
(de) Storm Westaim shall promptly give ARC, the Companies orally and in writing, at least two (2) Business Days advance notice of any decision determination by the Storm Westaim Board of Directors to accept, recommend, approve or enter into an agreement to implement that a Superior Proposal, shall set out the Storm’s Board reasonable determination of the financial value of the consideration offered by such third party to Storm Shareholders under such Superior Proposal, which notice shall confirm that the Storm Board of Directors has determined that such bona fide Acquisition Proposal constitutes a Superior Proposal, shall identify the third party Person making the Superior Proposal and shall provide a true and complete copy thereof and any amendments thereto. During the two For a period of three (23) Business Day period commencing on the delivery Days after providing notice of such noticedetermination by the Westaim Board, Storm Westaim agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the ArrangementReorganization. In addition, during such two three (23) Business Day period Storm period, Westaim shall, and shall cause its financial and legal advisors to, negotiate in good faith with ARC the Companies and its their financial and legal advisors advisors, to make such adjustments in the terms and conditions of this Agreement and the Arrangement as would enable ARC Westaim to proceed with the Arrangement Reorganization as amended rather than the Superior Proposal. In the event ARC proposes the Companies propose to amend this Agreement and the Arrangement such to provide that the Superior Proposal ceases Westaim Shareholders shall receive a value per share equal to be or having a value greater than the value per share provided in the Superior Proposal and so advises advise the Storm Westaim Board prior to the expiry of such two three (23) Business Day period, the Storm Westaim Board of Directors shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal, Proposal and shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement.
(e) Storm shall reaffirm its recommendation of Reorganization. If the Arrangement by press release promptly Westaim Board continues to believe that such Superior Proposal remains a Superior Proposal and therefore rejects the Companies’ amended proposal, Westaim may terminate this Agreement, provided however, that Westaim must pay to the Companies the non-completion fee described in any event within five Business Days of any written request to do so by ARC (or, in Section 10.4 with such termination. In the event that Westaim provides the Storm Meeting Companies with a copy of the notice referred to approve the Arrangement in this Subsection 10.3(e) on a date that is scheduled to occur within such five less than three (3) Business Day period, Days prior to the scheduled Westaim Meeting, Westaim shall adjourn the Westaim Meeting to a date that is not less than three (3) Business Days and not more than 10 Business Days after the date of such meeting) in the event that (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 3.5(d) which results in any Acquisition Proposal not being a Superior Proposalnotice.
(f) ARC Nothing contained in this Section 10.3 or any other provision of this Agreement shall prohibit the Westaim Board from: (i) making any disclosure of an Acquisition Proposal to the Westaim Shareholders prior to the Time of Closing if, in the good faith judgment of such board of directors after receiving the advice of outside counsel, such disclosure is necessary for the board of directors to act in a manner consistent with its fiduciary duties or is otherwise required under applicable law; (ii) taking any other action with regard to an Acquisition Proposal to the extent ordered or otherwise mandated by any court of competent jurisdiction; (iii) providing information to or otherwise dealing and negotiating with Persons including potential investors and potential agents and underwriters in respect of the Equity Financing; and (iv) providing information to, soliciting offers from or entering into or continuing negotiations or discussions with any third Person with respect to offers to purchase the assets of iFire and 1294339 Ontario Inc. and the shares of iFire IP Corporation and Westaim may accept any such offers and sell or enter into agreements to sell such assets or shares at any time provided that Westaim shall promptly advise the Companies of the existence and terms of any proposal or offer in respect thereof received by Westaim and subject to the Companies’ approval thereof, such approval not to be unreasonably withheld.
(g) Westaim also acknowledges and agrees that each successive material modification of any Acquisition Proposal shall constitute a new Acquisition Proposal for purposes of the requirement under Subsection 10.3(e) to initiate an additional three (3) Business Day notice period.
(h) The Companies agree that all information that may be provided to it by Storm Westaim, as the case may be, with respect to any Acquisition Proposal pursuant to this Section 3.5 10.3 shall be treated as if it were “Confidential Information” as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(g) Storm and ARC shall each ensure that their respective officers, directors and employees and any investment bankers or other advisers or representatives retained by it are aware of the provisions of this Section 3.5 and shall be responsible for any breach of this Section 3.5 by any of them.
(h) Nothing in this agreement shall prevent the Storm Board of Directors from complying with Section 2.17 of Multilateral Instrument 62-104 and similar provisions under Applicable Canadian Securities Laws relating to the provision of directors’ circulars in respect of an Acquisition Proposal that is not a Superior Proposal but only following Storm’s compliance with Section 3.5(d).
Appears in 1 contract
