Common use of Notice of Northgate Superior Proposal Determination Clause in Contracts

Notice of Northgate Superior Proposal Determination. (a) Northgate and the Northgate Board shall not accept, approve, recommend or enter into any agreement in respect of a Northgate Acquisition Proposal (other than a confidentiality agreement contemplated by subsection 6.3(d) hereof) on the basis that it could, if consummated in accordance with its terms, reasonably be expected to result in a Northgate Superior Proposal, or would constitute a Northgate Superior Proposal, unless: (i) the Northgate Meeting has not occurred; (ii) Northgate has complied with its obligations under section 6.3 and the other provisions of this Article 6; (iii) such Northgate Superior Proposal does not provide for the payment of any break, termination or other fees or expenses to the other Party in the event that Northgate completes the Arrangement or any similar other transaction with Primero or any of its affiliates agreed prior to any termination of this Agreement; (iv) it has provided Primero with the information about such Northgate Acquisition Proposal as required under subsection 6.3(c) that the Northgate Board have determined would be a Northgate Superior Proposal pursuant to subsection 6.3(a) hereof; (v) five Business Days shall have elapsed from the later of the date Primero received notice of the determination of the Northgate Board to accept, approve, recommend or enter into an agreement, arrangement or understanding in respect of such Northgate Superior Proposal and the date Northgate received the documents pursuant to subsection 6.3(c) hereof; and (vi) this Agreement is terminated under section 6.6 and the Northgate has paid the Northgate Termination Payment to Primero. (b) During the five Business Days referred to in subsection 6.4(a) hereof, Primero shall have the opportunity, but not the obligation, to propose in writing to amend the terms of this Agreement and the Arrangement. The Northgate Board shall review any proposal by Primero to amend the terms of this Agreement and the Arrangement in order to determine in good faith, as of the later of the dates referred to in subsection 6.4(a)(v) hereof, whether the proposed amendment by Primero upon acceptance by Northgate would result in the Northgate Acquisition Proposal not being a Northgate Superior Proposal. If the Northgate Board so determines, Northgate shall enter into an amended agreement with Primero reflecting the amended proposal of Primero and will promptly reaffirm its recommendation of the Arrangement as amended. (c) Northgate acknowledges and agrees that each successive modification of any Northgate Acquisition Proposal shall constitute a new Northgate Acquisition Proposal for purposes of the requirement under subsection 6.4(a)(v) hereof and shall initiate an additional five Business Day period. (d) The Northgate Board shall promptly reaffirm its recommendation of the Arrangement by press release after: (i) the Northgate Board determines any Northgate Acquisition Proposal is not a Northgate Superior Proposal; or (ii) the Northgate Board determines that a proposed amendment to the terms of the Arrangement would result in the Northgate Acquisition Proposal which has been publicly announced or made not being a Northgate Superior Proposal, and Primero has so amended the terms of the Arrangement. Primero and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by Northgate, acting reasonably. (e) If the Joint Information Circular has been sent to Northgate Shareholders prior to the expiry of the five Business Day period set forth in subsection 6.4(a)(v) and, during such period, Primero requests in writing that the Northgate Meeting proceed, Northgate shall continue to take all reasonable steps necessary to hold the Northgate Meeting and to cause the Arrangement to be voted on at the Northgate Meeting. (f) Where at any time before the Northgate Meeting, Northgate has provided Primero with a notice under subsection 6.3(c), a Northgate Acquisition Proposal has been publicly disclosed or announced, and the five Business Day period under subsection 6.4(a) has not elapsed, then, subject to applicable Laws, at Primero’s request, Northgate will postpone or adjourn the Northgate Meeting at the Northgate Meeting (but not beforehand without Primero’s consent) to a date acceptable to Primero, acting reasonably, which shall not be less than five days and not more than ten Business Days after the scheduled date of the Northgate Meeting and shall, in the event that Primero and Northgate amend the terms of this Agreement pursuant to subsection 6.4(b), ensure that the details of such amended Agreement are communicated to the Northgate Shareholders prior to the resumption of the adjourned or postponed Northgate Meeting.

Notice of Northgate Superior Proposal Determination. (a) Northgate and the Northgate Board shall not accept, approve, recommend or enter into any agreement in respect of a Northgate Acquisition Proposal (other than a confidentiality agreement contemplated by subsection 6.3(d6.1(d) hereof) on the basis that it could, if consummated in accordance with its terms, reasonably be expected to result in a Northgate Superior Proposal, or would constitute a Northgate Superior Proposal, unless: : (i) the Northgate Meeting has not occurred; ; (ii) Northgate has complied with its obligations under section 6.3 6.1 and the other provisions of this Article 6; ; (iii) such Northgate Superior Proposal does not provide for the payment of any break, termination or other fees or expenses to the other Party in the event that Northgate completes the Arrangement or any similar other transaction with Primero AuRico or any of its affiliates agreed prior to any termination of this Agreement; ; (iv) it has provided Primero AuRico with the information about such Northgate Acquisition Proposal as required under subsection 6.3(c6.1(c) that the Northgate Board have determined would be a Northgate Superior Proposal pursuant to subsection 6.3(a6.1(a) hereof; ; (v) five Business Days shall have elapsed from the later of the date Primero AuRico received notice of the determination of the Northgate Board to accept, approve, recommend or enter into an agreement, arrangement or understanding in respect of such Northgate Superior Proposal and the date Northgate AuRico received the documents pursuant to subsection 6.3(c6.1(c) hereof; and and (vi) this Agreement is terminated under section 6.6 6.5 and the Northgate has paid the Northgate Termination Payment to PrimeroAuRico. (b) During the five Business Days referred to in subsection 6.4(a6.2(a)(v) hereof, Primero AuRico shall have the opportunity, but not the obligation, to propose in writing to amend the terms of this Agreement and the Arrangement. The Northgate Board shall review any proposal by Primero AuRico to amend the terms of this Agreement and the Arrangement in order to determine in good faith, as of the later of the dates referred to in subsection 6.4(a)(v6.2(a)(v) hereof, whether the proposed amendment by Primero AuRico upon acceptance by Northgate would result in the Northgate Acquisition Proposal not being a Northgate Superior Proposal. If the Northgate Board so determines, Northgate shall enter into an amended agreement with Primero AuRico reflecting the amended proposal of Primero AuRico and will promptly reaffirm its recommendation of the Arrangement as amended. (c) Northgate acknowledges and agrees that each successive modification of any Northgate Acquisition Proposal shall constitute a new Northgate Acquisition Proposal for purposes of the requirement under subsection 6.4(a)(v6.2(a)(v) hereof and shall initiate an additional five Business Day period. (d) The Northgate Board shall promptly reaffirm its unanimous recommendation of the Arrangement by press release after: (i) the Northgate Board determines any Northgate Acquisition Proposal is not a Northgate Superior Proposal; or (ii) the Northgate Board determines that a proposed amendment to the terms of the Arrangement would result in the Northgate Acquisition Proposal which has been publicly announced or made not being a Northgate Superior Proposal, and Primero AuRico has so amended the terms of the Arrangement. Primero AuRico and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by Northgate, acting reasonably. (e) If the Joint Information Northgate Circular has been sent to Northgate Shareholders prior to the expiry of the five Business Day period set forth in subsection 6.4(a)(v6.2(a)(v) and, during such period, Primero AuRico requests in writing that the Northgate Meeting proceed, Northgate shall continue to take all reasonable steps necessary to hold the Northgate Meeting and to cause the Arrangement to be voted on at the Northgate Meeting. (f) Where at any time before the Northgate Meeting, Northgate has provided Primero AuRico with a notice under subsection 6.3(c6.1(c), a Northgate Acquisition Proposal has been publicly disclosed or announced, and the five Business Day period under subsection 6.4(a6.2(a)(v) has not elapsed, then, subject to applicable Laws, at PrimeroAuRico’s request, Northgate will postpone or adjourn the Northgate Meeting at the Northgate Meeting (but not beforehand without PrimeroAuRico’s consent) to a date acceptable to PrimeroAuRico, acting reasonably, which shall not be less than five days and not more than ten Business Days after the scheduled date of the Northgate Meeting and shall, in the event that Primero AuRico and Northgate amend the terms of this Agreement pursuant to subsection 6.4(b6.2(b), ensure that the details of such amended Agreement are communicated to the Northgate Shareholders prior to the resumption of the adjourned or postponed Northgate Meeting.