Common use of Right to Match Superior Proposal Clause in Contracts

Right to Match Superior Proposal. (a) If, before the Expiry Time or termination of the Offer, the board of directors of the Company determines that an Acquisition Proposal is a Superior Proposal, the Company shall immediately notify the Offeror in writing thereof and provide to the Offeror a notice (the “Notice of Superior Proposal”) containing (i) a copy of the document evidencing such Superior Proposal, (ii) the identity of the person making the Superior Proposal, (iii) a description of the terms and conditions of the Superior Proposal (including a copy of the confidentiality agreement between the Company and the person making the Superior Proposal and a written notice from the board of directors of the Company regarding the value in financial terms that the board of directors of the Company has in consultation with the Company’s financial advisor determined should be ascribed to any non-cash consideration offered under such Superior Proposal), and (iv) a copy of the letter of commitment, term sheet or other comparable evidence of financing upon which the board of directors of the Company relied in making the determination referred to in clause (iii) of the definition of “Superior Proposal”. The Company shall provide additional details of the Superior Proposal as the Offeror may reasonably request. The Company shall keep the Offeror promptly and fully informed of any change to the material terms of the Superior Proposal. (b) Until the expiration of the Right to Match Period, the board of directors of the Company shall not take any action to withdraw, modify, qualify or change its recommendation with respect to the Offer or to approve or implement or enter into, or resolve to enter into, any agreement related to such Superior Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). (c) The Company acknowledges and agrees that during the period (the “Right to Match Period”) ending on the fifth business day following the date of receipt of the Notice of Superior Proposal by the Offeror, the Offeror shall have the opportunity, but not the obligation, to offer to amend the terms of the Offer and this Agreement, and the Company shall co-operate with the Offeror with respect thereto, including negotiating in good faith with the Offeror until the expiry of the Right to Match Period. The board of directors of the Company shall review any offer by the Offeror to amend the terms of the Offer and this Agreement in order to determine, in good faith and in accordance with its fiduciary duties, whether the Offeror’s offer to amend the Offer and this Agreement would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the Offer and this Agreement. If the board of directors of the Company so determines, the Company and the Offeror shall amend this Agreement to reflect such offer and the Company shall not take any action to withdraw, modify, qualify or change its recommendation with respect to the Offer, as amended, or to approve or implement or enter into any agreement related to such Acquisition Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). If the Offeror does not offer to amend the terms of the Offer and this Agreement or the board of directors of the Company does not make the determination referred to above, the Company shall be entitled to terminate this Agreement and enter into an agreement in respect of the Superior Proposal or withdraw, modify, qualify or change its recommendation concerning the Offer and recommend the Superior Proposal, as applicable, provided that it shall have prior thereto or concurrently therewith paid to the Offeror or an affiliate of the Offeror identified to the Company by the Offeror the payment contemplated by Section 4.1 and further provided that the Company has not breached any of its covenants or obligations under Section 3.3. (d) Each successive modification of any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of Section 4.5.

Right to Match Superior Proposal. (a) If, before the Expiry Time or termination of the Offer, the board Board of directors of the Company Directors determines that an Acquisition Proposal is a Superior Proposal, the Company shall immediately notify the Offeror in writing thereof and provide to the Offeror a notice (the “Notice of Superior Proposal”) containing (i) a copy of the document evidencing such Superior Proposal, (ii) the identity with such deletions thereto as are necessary to protect confidential portions of the person making the such Superior Proposal, (iii) a description of provided that the material terms and or conditions of the Superior Proposal (including a copy of the confidentiality agreement between the Company and the person making the Superior Proposal and a written notice from the board of directors of the Company regarding the value in financial terms that the board of directors of the Company has in consultation with the Company’s financial advisor determined should may not be ascribed to any non-cash consideration offered under such Superior Proposal), and (iv) a copy of the letter of commitment, term sheet or other comparable evidence of financing upon which the board of directors of the Company relied in making the determination referred to in clause (iii) of the definition of “Superior Proposal”. The Company shall provide additional details of the Superior Proposal as the Offeror may reasonably request. The Company shall keep the Offeror promptly and fully informed of any change to the material terms of the Superior Proposaldeleted. (b) Until the expiration of the Right to Match Periodfive business day period after the Offeror is notified in writing as provided for in section 4.4(c), the board of directors of the Company shall not take any action to withdraw, modify, qualify modify or change its recommendation with respect to the Offer or to approve or implement or enter into, or resolve to enter into, into any agreement related to approve or implement such Superior Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). (c) The Company acknowledges and agrees that during the period (ending five business days after the “Right to Match Period”) ending on the fifth business day following later of the date of receipt such notification and the date the Offeror receives a copy of the Notice of document evidencing such Superior Proposal by the Offeroras described in section 4.4(a), the Offeror shall have the opportunity, but not the obligation, to offer to amend the terms of the Offer and this Agreement, and the Company shall co-operate with the Offeror with respect thereto, including negotiating in good faith with the Offeror until the expiry of the Right to Match Period. The board Board of directors of the Company Directors shall review any offer by the Offeror to amend the terms of the Offer and this Agreement in order to determine, in good faith and in accordance with its fiduciary duties, whether the Offeror’s offer to amend the Offer and this Agreement would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the Offer and this Agreement. If the board Board of directors of the Company Directors so determines, the Company and the Offeror shall amend this Agreement to reflect such offer and the Company shall not take any action to withdraw, modify, qualify modify or change its recommendation with respect to the Offer, as amended, or to approve or implement or enter into any agreement related to approve or implement such Acquisition Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). If the Offeror does not offer to amend the terms of the Offer and this Agreement or the board Board of directors of the Company Directors does not make the determination referred to above, the Company shall be entitled to terminate this Agreement and enter into an agreement in respect of the Superior Proposal or withdraw, modify, qualify modify or change its recommendation concerning the Offer and recommend the Superior Proposal, as applicable, provided that it shall have prior thereto or concurrently therewith paid forthwith pay to the Offeror or an affiliate of the Offeror identified to the Company by the Offeror the payment contemplated by Section 4.1 and further provided that the Company has not breached any of its covenants or obligations under Section 3.3section 4.1. (d) Each successive modification The Board of Directors shall promptly reaffirm its recommendation of the Offer by press release after: (i) any Acquisition Proposal shall constitute (which is determined not to be a new Superior Proposal) is publicly announced or made; or (ii) the Board of Directors determines that a proposed amendment to the terms of the Offer would result in the Acquisition Proposal for not being a Superior Proposal, and the purposes Offeror has so amended the terms of Section 4.5the Offer.

Right to Match Superior Proposal. (a) If, before the Expiry Time or termination of the Offer, the board Board of directors of the Company Directors determines that an Acquisition Proposal is a Superior Proposal, the Company shall immediately notify the Offeror in writing thereof and provide to the Offeror a notice (the “Notice of Superior Proposal”) containing (i) a copy of the document evidencing such Superior Proposal, (ii) the identity with such deletions thereto as are necessary to protect confidential portions of the person making the such Superior Proposal, (iii) a description of provided that the material terms and or conditions of the Superior Proposal (including a copy of the confidentiality agreement between the Company and the person making the Superior Proposal and a written notice from the board of directors of the Company regarding the value in financial terms that the board of directors of the Company has in consultation with the Company’s financial advisor determined should may not be ascribed to any non-cash consideration offered under such Superior Proposal), and (iv) a copy of the letter of commitment, term sheet or other comparable evidence of financing upon which the board of directors of the Company relied in making the determination referred to in clause (iii) of the definition of “Superior Proposal”. The Company shall provide additional details of the Superior Proposal as the Offeror may reasonably request. The Company shall keep the Offeror promptly and fully informed of any change to the material terms of the Superior Proposaldeleted. (b) Until the expiration of the Right to Match Periodfive business day period after the Offeror is notified in writing as provided for in section 4.4(c), the board of directors of the Company shall not take any action to withdraw, modify, qualify modify or change its recommendation with respect to the Offer or to approve or implement or enter into, or resolve to enter into, into any agreement related to approve or implement such Superior Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). (c) The Company acknowledges and agrees that during the period (ending five business days after the “Right to Match Period”) ending on the fifth business day following later of the date of receipt such notification and the date the Offeror receives a copy of the Notice of document evidencing such Superior Proposal by the Offeroras described in section 4.4(a), the Offeror shall have the opportunity, but not the obligation, to offer to amend the terms of the Offer and this Agreement, and the Company shall co-operate with the Offeror with respect thereto, including negotiating in good faith with the Offeror until the expiry of the Right to Match Period. The board Board of directors of the Company Directors shall review any offer by the Offeror to amend the terms of the Offer and this Agreement in order to determine, in good faith and in accordance with its fiduciary duties, whether the Offeror’s 's offer to amend the Offer and this Agreement would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the Offer and this Agreement. If the board Board of directors of the Company Directors so determines, the Company and the Offeror shall amend this Agreement to reflect such offer and the Company shall not take any action to withdraw, modify, qualify modify or change its recommendation with respect to the Offer, as amended, or to approve or implement or enter into any agreement related to approve or implement such Acquisition Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). If the Offeror does not offer to amend the terms of the Offer and this Agreement or the board Board of directors of the Company Directors does not make the determination referred to above, the Company shall be entitled to terminate this Agreement and enter into an agreement in respect of the Superior Proposal or withdraw, modify, qualify modify or change its recommendation concerning the Offer and recommend the Superior Proposal, as applicable, provided that it shall have prior thereto or concurrently therewith paid forthwith pay to the Offeror or an affiliate of the Offeror identified to the Company by the Offeror the payment contemplated by Section 4.1 and further provided that the Company has not breached any of its covenants or obligations under Section 3.3section 4.1. (d) Each successive modification The Board of Directors shall promptly reaffirm its recommendation of the Offer by press release after: (i) any Acquisition Proposal shall constitute (which is determined not to be a new Superior Proposal) is publicly announced or made; or (ii) the Board of Directors determines that a proposed amendment to the terms of the Offer would result in the Acquisition Proposal for not being a Superior Proposal, and the purposes Offeror has so amended the terms of Section 4.5the Offer.

Right to Match Superior Proposal. (a) If, before the Expiry Time or termination of the Offer, the board of directors of the Company determines that an Acquisition Proposal is a Superior Proposal, the Company shall immediately notify the Offeror in writing thereof and provide to the Offeror a notice (the “"Notice of Superior Proposal”") containing (i) a copy of the document evidencing such Superior Proposal, (ii) the identity of the person making the Superior Proposal, (iii) a description of the terms and conditions of the Superior Proposal (including a copy of the confidentiality agreement between the Company and the person making the Superior Proposal and a written notice from the board of directors of the Company regarding the value in financial terms that the board of directors of the Company has in consultation with the Company’s 's financial advisor determined should be ascribed to any non-cash consideration offered under such Superior Proposal), and (iv) a copy of the letter of commitment, term sheet or other comparable evidence of financing upon which the board of directors of the Company relied in making the determination referred to in clause (iii) of the definition of “"Superior Proposal”". The Company shall provide additional details of the Superior Proposal as the Offeror may reasonably request. The Company shall keep the Offeror promptly and fully informed of any change to the material terms of the Superior Proposal. (b) Until the expiration of the Right to Match Period, the board of directors of the Company shall not take any action to withdraw, modify, qualify or change its recommendation with respect to the Offer or to approve or implement or enter into, or resolve to enter into, any agreement related to such Superior Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). (c) The Company acknowledges and agrees that during the period (the “"Right to Match Period”") ending on the fifth business day following the date of receipt of the Notice of Superior Proposal by the Offeror, the Offeror shall have the opportunity, but not the obligation, to offer to amend the terms of the Offer and this Agreement, and the Company shall co-operate with the Offeror with respect thereto, including negotiating in good faith with the Offeror until the expiry of the Right to Match Period. The board of directors of the Company shall review any offer by the Offeror to amend the terms of the Offer and this Agreement in order to determine, in good faith and in accordance with its fiduciary duties, whether the Offeror’s 's offer to amend the Offer and this Agreement would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the Offer and this Agreement. If the board of directors of the Company so determines, the Company and the Offeror shall amend this Agreement to reflect such offer and the Company shall not take any action to withdraw, modify, qualify or change its recommendation with respect to the Offer, as amended, or to approve or implement or enter into any agreement related to such Acquisition Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). If the Offeror does not offer to amend the terms of the Offer and this Agreement or the board of directors of the Company does not make the determination referred to above, the Company shall be entitled to terminate this Agreement and enter into an agreement in respect of the Superior Proposal or withdraw, modify, qualify or change its recommendation concerning the Offer and recommend the Superior Proposal, as applicable, provided that it shall have prior thereto or concurrently therewith paid to the Offeror or an affiliate of the Offeror identified to the Company by the Offeror the payment contemplated by Section 4.1 and further provided that the Company has not breached any of its covenants or obligations under Section 3.3. (d) Each successive modification of any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of Section 4.5.

Right to Match Superior Proposal. The parties agree that: (a) Ifif, before the Expiry Time or termination of the OfferEffective Time, Frontier receives a written Acquisition Proposal that the board of directors of the Company Frontier determines that an Acquisition Proposal is a Superior Proposal, the Company shall Frontier shall, in accordance with section 3.3(d), immediately notify the Offeror Eldorado in writing thereof of the proposal and provide to Eldorado a copy of the Offeror a notice proposal; (b) until the “Notice expiration of the four business day period referred to in section 4.2(c) below, Frontier shall not take any action to withdraw, modify or change its recommendation with respect to the Amended Offer or to approve or implement or enter into any agreement to approve or implement such Superior Proposal”; and (c) containing (i) within four business days after the later of the date of such notification and the date Eldorado receives a copy of the document evidencing such Superior Proposal, (ii) Eldorado may, by notice in writing to Frontier, agree to amend this Agreement to increase the identity consideration to be paid to Shareholders pursuant to the Amended Offer to an amount having a value at least equal to the value of the person making the Superior Proposal, (iii) a description of the terms and conditions of the consideration offered under such Superior Proposal (including a copy provided that for the purposes of this Agreement, the confidentiality agreement between the Company and the person making the value of any non-cash consideration proposed to be paid, delivered or issued under any Superior Proposal and a written notice from or by Eldorado (unless the consideration proposed to be paid, delivered or issued under such Superior Proposal or by Eldorado includes an all-cash option, in which case the value of such consideration shall be equal to such cash consideration) shall be determined by the board of directors of the Company regarding the value in Frontier (having consulted any financial terms that advisor of Frontier or obtained other independent financial advice), acting reasonably, and Frontier shall forthwith provide to Eldorado all data, opinions and other information relied upon by the board of directors of Frontier in order to arrive at its determination of the Company has in consultation with the Company’s financial advisor determined should be ascribed to value of any non-cash consideration offered under such Superior Proposalto be paid), in which case Frontier and (iv) a copy of Eldorado shall agree to any amendments required to so increase the letter of commitment, term sheet or other comparable evidence of financing upon which the board of directors of the Company relied in making the determination referred to in clause (iii) of the definition of “Superior Proposal”. The Company shall provide additional details of the Superior Proposal as the Offeror may reasonably request. The Company shall keep the Offeror promptly consideration and fully informed of any change to the material terms of the Superior Proposal. (b) Until the expiration of the Right to Match Period, the board of directors of the Company Frontier shall not take any action to withdraw, modify, qualify or change withdraw its recommendation with respect to the Offer or to approve or implement or enter into, or resolve to enter into, any agreement related to such Superior Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). (c) The Company acknowledges and agrees that during the period (the “Right to Match Period”) ending on the fifth business day following the date of receipt of the Notice of Superior Proposal by the Offeror, the Offeror shall have the opportunity, but not the obligation, to offer to amend the terms of the Offer and this Agreement, and the Company shall co-operate with the Offeror with respect thereto, including negotiating in good faith with the Offeror until the expiry of the Right to Match Period. The board of directors of the Company shall review any offer by the Offeror to amend the terms of the Offer and this Agreement in order to determine, in good faith and in accordance with its fiduciary duties, whether the Offeror’s offer to amend the Offer and this Agreement would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the Offer and this Agreement. If the board of directors of the Company so determines, the Company and the Offeror shall amend this Agreement to reflect such offer and the Company shall not take any action to withdraw, modify, qualify or change its recommendation with respect to the Amended Offer, as amended, or to approve or implement or enter into any agreement related to such Acquisition Proposal, other than a confidentiality and standstill agreement permitted by Section 3.3(d). If the Offeror does not offer to amend the terms of the Offer and this Agreement or the board of directors of the Company does not make the determination referred to above, the Company shall be entitled to terminate this Agreement and enter into an agreement in respect of the Superior Proposal or withdraw, modify, qualify release the person making such Superior Proposal from any standstill or change its recommendation concerning the Offer and recommend the Superior Proposal, as applicable, provided that it shall have prior thereto or concurrently therewith paid to the Offeror or an affiliate of the Offeror identified to the Company by the Offeror the payment contemplated by Section 4.1 and further provided that the Company has not breached any of its covenants or obligations under Section 3.3confidentiality obligation. (d) Each successive modification of any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of Section 4.5.