Responding to an Acquisition Proposal Clause Samples

Responding to an Acquisition Proposal. (1) Notwithstanding Section 5.1, or any other agreement between the Parties or between the Company and any other Person, including without limitation the Non-Disclosure Agreement, if at any time prior to obtaining the Required Shareholder Approval, the Company receives a bona fide unsolicited written Acquisition Proposal, the Company may (a) contact the Person making such Acquisition Proposal and its Representatives for the purpose of clarifying the terms and conditions of such Acquisition Proposal, and (b) engage in or participate in discussions or negotiations with such Person regarding such Acquisition Proposal, and may provide copies of, access to or disclosure of confidential information, properties, facilities, or books and records of the Company or any of its Subsidiaries, if and only if, in the case of clause (b): (a) the Board first determines (based upon, amongst other things, the recommendation of the Special Committee) in good faith, after consultation with its financial advisers and its outside legal counsel, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal; (b) such Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality or similar agreement, restriction or covenant with the Company or any of its Subsidiaries; (c) the Company has been, and continues to be, in compliance with its obligations under Article 5 in all material respects; (d) the Company enters into an Acceptable Confidentiality Agreement, and any such copies, access or disclosure provided to such Person shall have already been (or promptly be) provided to the Purchaser (by posting such information to the Data Room or otherwise); and (e) prior to engaging in or participating in discussions or negotiations with such Person regarding such Acquisition Proposal (excluding, for certainty, negotiations regarding an Acceptable Confidentiality Agreement that do not relate to the terms and conditions of the Acquisition Proposal) or providing any such copies, access or disclosure, the Company promptly provides the Purchaser with a true, complete and final executed copy of the Acceptable Confidentiality Agreement referred to in Section 5.3(1)(d).

Responding to an Acquisition Proposal. (1) Notwithstanding Section 5.1, if at any time prior to obtaining the approval of the Arrangement Resolution, the Company receives from a Person a bona fide written Acquisition Proposal that was not, directly or indirectly, solicited, initiated, knowingly encouraged or otherwise facilitated in violation of Section 5.1, the Company may, in response to such Acquisition Proposal: (i) furnish information with respect to the Company in response to a request therefor by such Person; and (ii) engage in or participate in discussions or negotiations with such Person regarding such Acquisition Proposal, if and only if: (a) the Company notifies the Purchaser of such Acquisition Proposal in accordance with Section 5.4; (b) prior to the taking of any such action, the Board determines in good faith, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal; and (c) prior to providing any such information, the Company enters into a confidentiality agreement with such Person that will include a customary standstill provision, and that is otherwise on terms and conditions no less onerous or more beneficial to such Person than those set forth in the Confidentiality Agreement, provided that such agreement need not prohibit the making or amendment of any Acquisition Proposal and may not include provisions granting such Person an exclusive right to negotiate with the Company.

Responding to an Acquisition Proposal. (1) Notwithstanding Section 5.1(1), if at any time following the date of this Agreement and prior to obtaining the Required Shareholder Approval at the Meeting the Corporation receives an unsolicited Acquisition Proposal, the Corporation may engage in or participate in discussions or negotiations with the relevant Person regarding such Acquisition Proposal, and may provide copies of, access to or disclosure of disclosure relating to the properties, facilities, books and records of the Corporation or any of its Subsidiaries, Joint Ventures or Investments, if and only if: (a) the Board first determines in good faith, after consultation with its financial and outside legal advisors, that such Acquisition Proposal constitutes or could reasonably be expected to constitute or lead to a Superior Proposal; (b) such Person was not restricted from making such Acquisition Proposal pursuant to any existing confidentiality, standstill or similar restriction to which the Corporation is party; (c) such Acquisition Proposal did not arise, directly or indirectly, as a result of a violation by the Corporation directly or indirectly through its Subsidiaries or Joint Ventures or their respective Representatives of this Article 5 in any material respect, and the Corporation has been and continues to be in compliance with its obligations under this Article 5, in all material respects; (d) the Corporation enters into a customary confidentiality and standstill agreement with such Person; (e) the Corporation has provided the Purchaser with (i) written notice stating the Corporation’s intention to participate in such discussions or negotiations and to provide such copies, access or disclosure; and (ii) a copy of the confidentiality and standstill agreement refereed to in Section 5.3(1)(d) above; and (f) the Corporation promptly provides the Purchaser with any substantive or material non- public information concerning the Corporation, its Subsidiaries, Joint Ventures and Investments provided to such other Person which was not previously provided to the Purchaser.

Responding to an Acquisition Proposal. (1) Notwithstanding Section 5.1, if at any time prior to obtaining the approval of the Arrangement Resolution, the Company or any of its Representatives receives from a Person a bona fide written Acquisition Proposal (including, for greater certainty, a variation or other amendment to an Acquisition Proposal), or any proposal that could constitute or lead to an Acquisition Proposal, that was not, directly or indirectly, solicited, initiated, knowingly encouraged or otherwise facilitated in violation of Section 5.1, the Company and its Representatives may, in response to such Acquisition Proposal: (i) furnish information with respect to the Company and its Subsidiaries in response to a request therefor by such Person; and (ii) engage in or participate in discussions or negotiations with such Person regarding such Acquisition Proposal, if and only if: (a) the Company notifies the Purchaser of such Acquisition Proposal in accordance with Section 5.4; (b) prior to the taking of any such action, the Board determines in good faith, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (notwithstanding the foregoing, the Purchaser acknowledges and agrees that the Board may contact the Person(s) making such Acquisition Proposal in advance of the Board making a determination that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal for the sole purpose of clarifying the terms and conditions of such Acquisition Proposal so as to determine whether it is, or could reasonably be expected to lead to, a Superior Proposal); and (c) prior to providing any such information, the Company enters into a confidentiality agreement with such Person that is on terms and conditions no less onerous or more beneficial to such Person than those set forth in the Confidentiality Agreement, provided that such agreement need not prohibit the making or amendment of any Acquisition Proposal and may not include provisions granting such Person an exclusive right to negotiate with the Company.

Responding to an Acquisition Proposal. Notwithstanding Section 5.1, if, at any time prior to obtaining the Required Shareholder Approval, the Target receives an Acquisition Proposal, the Target and its Representatives may engage in or participate in discussions or negotiations with such Person regarding such Acquisition Proposal, and, subject to entering into a confidentiality and standstill agreement with such Person containing terms that are not materially less favourable to the Target than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality and standstill agreement need not restrict the making of a confidential Acquisition Proposal and related communications to the Target or the Board or any committee thereof), a final, complete and executed copy of which shall be provided to the Purchaser prior to providing such Person with any such copies, access or disclosure, the Target and its Representatives may provide copies of, access to or disclosure of information, properties, facilities, books or records of the Target or the Subsidiaries, if and only if: (a) the Board first determines in good faith, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to constitute or lead to a Superior Proposal; (b) the Target has been, and continues to be, in compliance with its obligations under Section 5.1 in all material respects; and (c) any such copies, access or disclosure provided to such Person shall have already been (or shall concurrently be) provided to the Purchaser.

Responding to an Acquisition Proposal. Notwithstanding Section 5.1, if at any time prior to obtaining the approval of Parentco Shareholders of the Arrangement Resolution, Parentco receives an Acquisition Proposal, Parentco may engage in or participate in discussions or negotiations with, and otherwise cooperate with and assist, such person regarding such Acquisition Proposal, and, subject to Parentco (i) entering into a confidentiality and standstill agreement with such person (if one has not already been entered into), (ii) concurrently providing Spinco with access to any information that is provided to such person and was not previously provided to Spinco and (iii) promptly providing Spinco with a true, complete and final executed copy of such confidentiality and standstill agreement, may provide copies of, access to or disclosure of information, properties, facilities, books or records of Parentco or its Subsidiaries, if: (a) the Board first determines in good faith, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal; and (b) Parentco has been, and continues to be, in compliance with its obligations under this Article 5.

Responding to an Acquisition Proposal. (a) Notwithstanding Section 5.1 or any other agreement between the Parties or between Target and any other Person, if at any time, prior to obtaining the Required Approvals from the Target Shareholders, Target receives a written Acquisition Proposal, Target may engage in or participate in discussions or negotiations with such Person regarding such Acquisition Proposal, and may provide copies of, access to or disclosure of confidential information, properties, facilities, books or records of Target or the Target Subsidiaries for a maximum of fifteen (15) Business Days after the date that such access or disclosure is first afforded to the Person making the Acquisition Proposal, if and only if: (i) the Target Board first determines in good faith, after consultation with its financial advisors and its outside counsel, that such Acquisition Proposal constitutes or could reasonably be expected to constitute or lead to a Superior Proposal, and, after consultation with its outside counsel, that the failure to engage in such discussions or negotiations would be inconsistent with its fiduciary duties; (ii) Target has been, and continues to be, in compliance with its obligations under this Article 5; (iii) prior to providing any such copies, access, or disclosure, Target enters into a customary confidentiality and standstill agreement with such Person, provided that such confidentiality and standstill agreement may not restrict Target or any of the Target Subsidiaries from complying with this Article 5; (iv) Target promptly provides Acquirer with two (2) Business Days prior written notice stating Target’s intention to participate in such discussions or negotiations and to provide such copies, access or disclosure; and (v) Target shall promptly provide to Acquirer any material non-public information concerning Target or any of the Target Subsidiaries provided to such Person which was not previously provided to Acquirer.

Responding to an Acquisition Proposal. Notwithstanding Section 5.1, or any other agreement between the Parties or between the Company and any other Person, if at any time prior to the approval of the Arrangement Resolution, the Company receives an unsolicited Acquisition Proposal not resulting from a breach of this Article 5, the Company may:

Responding to an Acquisition Proposal. Notwithstanding Section 5.1, or any other agreement between the Parties or between the Company and any other Person, including without limitation the Confidentiality Agreement, if at any time, prior to obtaining the approval by the Company Shareholders of the Arrangement Resolution, a Party receives a written Acquisition Proposal such Party may: