Common use of Responding to a Company Acquisition Proposal Clause in Contracts

Responding to a Company Acquisition Proposal. (1) If at any time, prior to obtaining the Required Approval, the Company receives a Company Acquisition Proposal, inquiry, proposal, offer or request, the Company may engage in or participate in discussions or negotiations with such Person regarding such Company Acquisition Proposal, inquiry, proposal, offer or request and may provide copies of, access to or disclosure of confidential information, properties, facilities, books or records of the Company or its Subsidiaries, if and only if: (a) the Company Board first determines in good faith, after consultation with its financial advisors and its outside legal counsel, that such Company Acquisition Proposal constitutes or could reasonably be expected to constitute or lead to a Company Superior Proposal, and, after consultation with its outside legal counsel, that the failure to engage in such discussions or negotiations would be inconsistent with its fiduciary duties; (b) such Person was not restricted from making such Company Acquisition Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Company or its Subsidiaries; (c) the Company Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Company of this Article 5; (d) the Company enters into a confidentiality and standstill agreement with such Person having terms that are not less onerous than those set out in the Confidentiality Agreement, provided that such confidentiality and standstill agreement may allow such Person to make an Company Acquisition Proposal confidentially to the Company Board that constitutes, or could reasonably be expected to constitute or lead to, a Company Superior Proposal; and (e) the Company promptly provides the Purchaser with: (i) prior written notice stating the Company’s intention to participate in such discussions or negotiations and to provide such copies, access or disclosure; (ii) prior to providing any such copies, access or disclosure, a true, complete and final executed copy of the confidentiality and standstill agreement referred to in Section 5.3(1)(d); and (iii) any non-public information concerning the Company and its Subsidiaries provided to such other Person which was not previously provided to the Purchaser.

Responding to a Company Acquisition Proposal. (1) If Notwithstanding Section 5.1, provided the Company is in compliance with Section 5.1 and Section 5.2, if at any time, prior to obtaining the Required Approvalapproval by the Company Shareholders of the Arrangement Resolution, the Company receives a bona fide written Company Acquisition Proposal, inquiry, proposal, offer or requestProposal that did not result from a breach of Section 5.1, the Company may engage in or participate in discussions or negotiations with such Person regarding such Company Acquisition Proposal, inquiry, proposal, offer or request and may provide copies of, access to or disclosure of confidential information, properties, facilities, books or records of the Company or its Subsidiaries, if and only if: (a) the Company Board (i) first determines in good faith, after consultation with its financial advisors and its outside legal counsel, that such Company Acquisition Proposal constitutes is or could may reasonably be expected to constitute or lead to result in a Company Superior Proposal, and, after consultation with and (ii) has received written advice from its outside legal counsel, counsel that the failure to engage in such discussions or negotiations would be inconsistent with its fiduciary duties; (b) such Person was not restricted from making such Company Acquisition Proposal pursuant to an existing standstill, confidentiality, standstill, non-disclosure, usebusiness purpose, business purpose use or similar restriction with or agreement and no waiver of any such provision was granted to the Company or its SubsidiariesPerson; (c) the Company Acquisition Proposalhas been, inquiryand continues to be, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Company of in compliance with its obligations under this Article 5; (d) prior to providing any such copies, access, or disclosure, the Company enters into a confidentiality and standstill agreement with such Person having terms that are not less onerous than those set out in substantially in the same form as the Confidentiality Agreement, provided that Agreement (in particular but without limitation such confidentiality and standstill agreement may allow such Person not include any provision calling for an exclusive right to make an Company Acquisition Proposal confidentially to negotiate with the Company Board that constitutes, and may not restrict the Company or could reasonably be expected to constitute or lead to, a Company Superior Proposalits Subsidiaries from complying with this Section 5.1); and (e) the Company promptly provides the Purchaser with: (i) two (2) Business Days prior written notice stating the Company’s intention to participate in such discussions or negotiations and to provide such copies, access or disclosure;, together with a copy of written advice from the Company’s outside counsel that the failure to engage in such discussions or negotiations would be inconsistent with the Company Board’s fiduciary duties; and (ii) prior to providing any such copies, access or disclosure, a true, complete and final unredacted executed copy of the confidentiality and standstill agreement referred to in Section 5.3(1)(d); and (iii) , provided that, the Company shall not, and shall not allow its Representatives to, disclose any non-public information concerning with respect to the Company and or any of its Subsidiaries provided to such other Person which was if such non-public information has not been previously provided to to, or is not concurrently provided to, the Purchaser.

Responding to a Company Acquisition Proposal. (1a) If Notwithstanding Section 7.01, if, at any time, time prior to obtaining the Required Approvalapproval of the Arrangement Resolution by the Company Shareholders, the Company receives a bona fide written Company Acquisition ProposalProposal that did not result from a breach of this Article VII, inquiry, proposal, offer or requestby the Company, the Company may may; (i) contact the Person making such Company Acquisition Proposal and its representatives solely for the purpose of clarifying the terms and conditions of such Company Acquisition Proposal or notifying such Person that the Company Acquisition Proposal is not: (A) a Company Superior Proposal; or (B) reasonably expected to constitute or lead to a Company Superior Proposal; and (ii) engage in or participate in discussions or negotiations with such Person regarding such Company Acquisition Proposal, inquiry, proposal, offer or request Proposal and may provide copies of, access to to, or disclosure of confidential of, information, properties, facilities, books or records of the Company or its SubsidiariesSubsidiary, if and only if:, in the case of this Section 7.02(a)(ii): (aA) the Company Board first determines in good faith, after consultation with its financial advisors and its outside legal counsel, that such Company Acquisition Proposal is bona fide and constitutes or could may reasonably be expected to constitute or lead to a Company Superior Proposal, and, after consultation with its outside legal counsel, that the failure to engage in such discussions or negotiations would be inconsistent with its fiduciary duties; (bB) such Person was not restricted from making such the Company Acquisition Proposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Company or its SubsidiariesSubsidiary; (cC) the Company Acquisition Proposalhas been, inquiryand continues to be, proposal, offer or request did not arise, directly or indirectly, as a result of a violation by the Company of in compliance with its obligations under this Article 5;VII in all material respects; and (dD) prior to providing any such copies, access, or disclosure, the Company enters into a confidentiality and standstill agreement with containing terms no more favourable to such Person having terms that are not less onerous in any material respect than those set out in the Confidentiality Agreement; provided that, provided that (x) such confidentiality and standstill agreement may allow such Person to make an need not prohibit the making or amendment of any Company Acquisition Proposal confidentially to the Company Board that constitutesProposal, or could reasonably be expected to constitute or lead to, a Company Superior Proposal; and (ey) the Company promptly provides sends the Purchaser with: (i) prior written notice stating the Company’s intention to participate in such discussions or negotiations and to provide such copies, access or disclosure; (ii) prior to providing any such copies, access or disclosure, Parent a true, complete and final executed copy of such confidentiality agreement promptly following execution thereof and (z) the confidentiality and standstill agreement referred Company contemporaneously provides to in Section 5.3(1)(d); and (iii) the Parent any non-public information concerning the Company and its Subsidiaries that is provided to such other Person which was not previously provided to the PurchaserBuyer. (b) Nothing contained in this Agreement will prevent the Company Board from: (i) complying with Section 2.17 of Multilateral Instrument 62-104 – Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ circular in respect of a Company Acquisition Proposal; (ii) making any disclosure to the Company Shareholders, if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be inconsistent with its duties to Company Shareholders under applicable Law, or would violate Securities Laws; or (iii) making accurate disclosure to the Company Shareholders of: (A) factual information regarding the business, financial condition or results of operations of the Company; or (B) the fact that a Company Acquisition Proposal has been made, the identity of the Person making such Company Acquisition Proposal or the material terms of such Company Acquisition Proposal (and such disclosure will not be deemed to be a Company Change in Recommendation); provided that, in making such disclosure the Company complies with its obligations under this Agreement and; provided further that, as (unless otherwise required by Law) any disclosure contemplated by this Section 7.02(b) does not contain either a Company Change in Recommendation, or any other statements by or on behalf of the Company Board which would reasonably be expected to have the same effect as a Company Change in Recommendation. The Company shall provide legal counsel to the Parent with a reasonable opportunity to review and comment upon drafts of all documents to be disclosed pursuant to this Section 7.02(b) and shall give reasonable consideration to all such comments, provided that such review and comment does not impede, delay or otherwise hinder the Company’s ability to fulfil its disclosure requirements under applicable Securities Laws.