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

Notice of Primero Superior Proposal Determination. (a) Primero and the Primero Board shall not accept, approve, recommend or enter into any agreement in respect of a Primero Acquisition Proposal (other than a confidentiality agreement contemplated by subsection 6.1(d) hereof) on the basis that it could, if consummated in accordance with its terms, reasonably be expected to result in a Primero Superior Proposal, or would constitute a Primero Superior Proposal, unless: (i) the Primero Meeting has not occurred; (ii) Primero has complied with its obligations under section 6.1 and the other provisions of this Article 6; (iii) such Primero 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 Primero completes the Arrangement or any similar other transaction with Northgate or any of its affiliates agreed prior to any termination of this Agreement; (iv) it has provided Northgate with the information about such Primero Acquisition Proposal as required under subsection 6.1(c) that the Primero Board have determined would be a Primero Superior Proposal pursuant to subsection 6.1(a) hereof; (v) five Business Days shall have elapsed from the later of the date Northgate received notice of the determination of the Primero Board to accept, approve, recommend or enter into an agreement, arrangement or understanding in respect of such Primero Superior Proposal and the date Northgate received the documents pursuant to subsection 6.1(c) hereof; and (vi) this Agreement is terminated under section 6.5 and Primero has paid the Primero Termination Payment to Northgate. (b) During the five Business Days referred to in subsection 6.2(a) hereof, Northgate shall have the opportunity, but not the obligation, to propose in writing to amend the terms of this Agreement and the Arrangement. The Primero Board shall review any proposal by Northgate 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 6.2(a)(v) hereof, whether the proposed amendment by Northgate upon acceptance by Primero would result in the Primero Acquisition Proposal not being a Primero Superior Proposal. If the Primero Board so determines, Primero shall enter into an amended agreement with Northgate reflecting the amended proposal of Northgate and will promptly reaffirm its recommendation of the Arrangement as amended. (c) Primero acknowledges and agrees that each successive modification of any Primero Acquisition Proposal shall constitute a new Primero Acquisition Proposal for purposes of the requirement under subsection 6.2(a)(v) hereof and shall initiate an additional five Business Day period. (d) The Primero Board shall promptly reaffirm its recommendation of the Arrangement by press release after: (i) the Primero Board determines any Primero Acquisition Proposal is not a Primero Superior Proposal; or (ii) the Primero Board determines that a proposed amendment to the terms of the Arrangement would result in the Primero Acquisition Proposal which has been publicly announced or made not being a Primero Superior Proposal, and Northgate has so amended the terms of the Arrangement. Northgate 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 Primero, acting reasonably. (e) If the Joint Information Circular has been sent to Primero Shareholders prior to the expiry of the five Business Day period set forth in subsection 6.2(a)(v) and, during such period, Northgate requests in writing that the Primero Meeting proceed, Primero shall continue to take all reasonable steps necessary to hold the Primero Meeting and to cause the Arrangement to be voted on at the Primero Meeting. (f) Where at any time before the Primero Meeting, Primero has provided Northgate with a notice under subsection 6.1(c), a Primero Acquisition Proposal has been publicly disclosed or announced, and the five Business Day period under subsection 6.2(a)(v) has not elapsed, then, subject to applicable Laws, at Northgate’ request, Primero will postpone or adjourn the Primero Meeting at the Primero Meeting (but not beforehand without Northgate’ consent) to a date acceptable to Northgate, acting reasonably, which shall not be less than five days and not more than ten Business Days after the scheduled date of the Primero Meeting and shall, in the event that Northgate and Primero amend the terms of this Agreement pursuant to subsection 6.2(b), ensure that the details of such amended Agreement are communicated to the Primero Shareholders prior to the resumption of the adjourned or postponed Primero Meeting.