Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any Acquisition Proposal if and only if: (i) such Acquisition Proposal constitutes a Superior Proposal; (ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18; (iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal; (iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”); (v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal; (vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and (vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b). (b) During the Matching Period: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. (c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposal. (d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser. (e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 3 contracts
Samples: Arrangement Agreement (Vitran Corp Inc), Arrangement Agreement (TransForce Inc. \ Quebec Canada), Arrangement Agreement (Vitran Corp Inc)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If a Party receives an Acquisition Proposal that constitutes a Superior Proposal (the “Receiving Party”) prior to, in the case of GameSquare being the Receiving Party, the approval of the GameSquare Arrangement Resolution by the GameSquare Shareholders, and in the case of Engine Gaming being the Receiving Party, the approval of the Engine Gaming Resolution by the Engine Gaming Shareholders, the Receiving Party may, subject to compliance with Section 7.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the person or persons making such Acquisition Superior Proposal constitutes a was not restricted from making such Superior ProposalProposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purposes or similar restriction with the Receiving Party or its Subsidiaries;
(iib) Vitran the Receiving Party has been, and continues to bebe in, in compliance with its obligations under Sections 16, 17 and 18this Article 5 in all material respects;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Receiving Party has delivered to the Purchaser other Party a written notice of the determination of the Receiving Party’s board of directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Receiving Party’s board of directors of Vitran to make a Change in Recommendation and to accept, or approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which including a notice will include as to the director’s determination regarding the value or range of value in financial terms that the board of directors of Vitran havehas, in consultation with Vitran’s its outside financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the with respect to such Superior Proposal (the “Superior Proposal Notice”);
(vd) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all ancillary documents (and supporting materials) containing material terms and conditions of the Superior Proposal, including any financing documents supplied to a Receiving Party in connection therewith;
(e) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser the other Party received the Superior Proposal Notice and the date on which Purchaser such other Party received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(d);
(vif) if Purchaser during any Matching Period, such other Party has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the Receiving Party’s board of directors of Vitran (i) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser the other Party under Section 18(b5.4(2))) and has determined in good faith, after consultation with its outside legal counsel, that the failure by the board of directors to take such action would be inconsistent with its fiduciary duties; and
(viih) Vitran has terminated prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Receiving Party terminates this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b)7.2.
(b2) During the Matching Period, or such longer period as the Receiving Party may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the Receiving Party’s board of directors of Vitran shall review any offer made by Purchaser the other Party under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and Proposal (iiib) Vitran the Receiving Party shall negotiate in good faith with Purchaser the other Party to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser the other Party and/or its affiliates to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the Receiving Party’s board of directors of Vitran determine determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Receiving Party shall promptly so advise Purchaser the other Party and the Parties shall amend this Agreement to reflect such offer made by Purchaserthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and Purchaser the other Party shall not have be afforded a new full Matching Period from the right later of the date on which such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Receiving Party.
(d4) The Receiving Party’s board of directors shall promptly reaffirm the GameSquare Board Recommendation or the Engine Gaming Board Recommendation, as the case may be, by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement as contemplated Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Receiving Party shall provide the other Party and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the other Party and its counsel.
(5) Nothing in this Arrangement shall prohibit the board of directors from responding through a directors’ circular or otherwise as required by applicable Securities Laws to an Acquisition Proposal that it determines is not a Superior Proposal, provided that the Receiving Party shall provide the other Party and its legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure. Further, nothing in this Agreement shall prevent the board of directors from making any disclosure to the Receiving Party’s shareholders if the board of directors, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the board of directors or such disclosure is otherwise required under Law; provided, however, that, notwithstanding the board of directors shall be permitted to make such disclosure, the board of directors shall not be permitted to make a Change in Recommendation, other than as permitted by Section 5.4(1) or the first sentence of this paragraph.
(6) If Vitran the Receiving Party provides a Superior Proposal Notice to Purchaser after the other Party on a date that is less than seven five Business Days before the Vitran GameSquare Meeting or the Engine Gaming Meeting, Vitran shall either as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or shall adjourn or postpone such GameSquare Meeting or Engine Gaming Meeting, as the Vitran Meeting case may be, in accordance with the terms of this Agreement to a date specified by the other Party that is not more than seven ten Business Days after the scheduled date of the Vitran GameSquare Meeting or the Engine Gaming Meeting, as directed by Purchaserthe case may be, provided that in no event shall such adjourned or postponed meeting be held on a date that is less than five Business Days prior to the Outside Date.
(e7) Vitran shall advise the Vitran Subsidiaries and their respective Each Party will ensure that each of its Representatives is aware of the prohibitions set out in Sections 16, 17 and 18 and any provisions of this Article 5. Any violation of the restrictions set forth in these sections this Article 5 by Vitran, the Vitran Subsidiaries a Subsidiary or the respective Representatives is a Representative of a Party or by a Representative of a Subsidiary of a Party shall be deemed to be a breach of these sections this Article by Vitransuch Party for which such Party shall be responsible.
Appears in 3 contracts
Samples: Arrangement Agreement (Engine Gaming & Media, Inc.), Arrangement Agreement (GameSquare Esports Inc), Arrangement Agreement
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If a Party receives an Acquisition Proposal that constitutes a Superior Proposal (the “Receiving Party”) prior to, in the case of Alacer being the Receiving Party, the approval of the Arrangement Resolution by the Alacer Shareholders, and in the case of SSR being the Receiving Party, the approval of the SSR Resolutions by the SSR Shareholders, the Receiving Party may, subject to compliance with Section 8.2 and Section 8.3, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the person or persons making such Acquisition Superior Proposal constitutes a was not restricted from making such Superior ProposalProposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purposes or similar restriction with the Receiving Party or its subsidiaries;
(iib) Vitran the Receiving Party has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 7 in all material respects;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Receiving Party has delivered to the Purchaser other Party a written notice of the determination of the Receiving Party’s board of directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Receiving Party’s board of directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the directorReceiving Party’s determination board of directors regarding the value or range of value in and financial terms that the directors board of Vitran havedirectors, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the such Superior Proposal (the “Superior Proposal Notice”);
(vd) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to a Receiving Party in connection therewith;
(e) at least five Business Days business days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser the other Party received the Superior Proposal Notice and the date on which Purchaser such other Party received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 7.4(1)(d);
(vif) if Purchaser during any Matching Period, such other Party has offered had the opportunity (but not the obligation), in accordance with Section 7.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the Receiving Party’s board of directors of Vitran (i) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser the other Party under Section 18(b7.4(2))) and that the failure by the board of directors to take such action would be inconsistent with its fiduciary duties; and
(viih) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Receiving Party terminates this Agreement pursuant to Section 20(a)(iii)28.2(1)(c)(ii) or Section 8.2(1)(d)(ii), as applicable, and paid any applicable pays the SSR Termination Fee Amount or the Alacer Termination Amount, as applicable, pursuant to Section 19(b)8.3.
(b2) During the Matching Period, or such longer period as the Receiving Party may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the Receiving Party’s board of directors of Vitran shall review any offer made by Purchaser the other Party under Section 7.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Receiving Party shall negotiate negotiate, and cause its Representatives to negotiate, in good faith with Purchaser the other Party to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser the other Party to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the Receiving Party’s board of directors of Vitran determine determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Receiving Party shall promptly so advise Purchaser the other Party and the Parties shall amend this Agreement to reflect such offer made by Purchaserthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 7.4, and Purchaser the other Party shall not have be afforded a new five business day Matching Period from the right later of the date on which such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 7.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Receiving Party.
(d4) The Receiving Party’s board of directors shall promptly reaffirm the Alacer Board Recommendation or the SSR Board Recommendation, as the case may be, by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement as contemplated Section 7.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Receiving Party shall provide the other Party and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the other Party and its counsel.
(5) If Vitran the Receiving Party provides a Superior Proposal Notice to Purchaser after the other Party on a date that is less than seven Business Days 10 business days before the Vitran Alacer Meeting or the SSR Meeting, Vitran shall either as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or shall adjourn or postpone such Alacer Meeting or SSR Meeting, as the Vitran Meeting case may be, in accordance with the terms of this Agreement to a date specified by the other Party that is not more than seven Business Days 10 business days after the scheduled date of the Vitran Alacer Meeting or the SSR Meeting, as directed by Purchaserthe case may be, provided that in no event shall such adjourned or postponed meeting be held on a date that is less than five business days prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 3 contracts
Samples: Arrangement Agreement (SSR Mining Inc.), Arrangement Agreement, Arrangement Agreement
Right to Match. (a) Vitran may take Subject to Section 4.2(b), COS agrees that it will not accept, approve, recommend or enter into any action that is prohibited by Sections 16(a)(iii) agreement, understanding or (iv) arrangement in respect of any an Acquisition Proposal if (other than a confidentiality agreement permitted by Section 4.1(d)) or withdraw, modify or qualify its approval or recommendation of the Offer and only ifrecommend or approve the Acquisition Proposal, unless:
(i) such the board of directors of COS determines that the Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran COS has been, and continues to be, in compliance complied with its obligations under Sections 16, 17 all other provisions of this Article 4 and 18has provided Suncor with a copy of the Acquisition Proposal;
(iii) such Acquisition Proposal is in writing a period (the “Response Period”) of five Business Days shall have elapsed from the later of (A) the date on which Suncor received written notice from the board of directors of COS that the board of directors of COS determined, subject only to compliance with this Section 4.2, to accept, approve, recommend or enter into a binding agreement to proceed with the Superior Proposal, and Purchaser has been provided with (B) the date Suncor received a copy of the letter of intent or agreement relating to such Superior Acquisition Proposal;
(iv) Vitran has delivered to after the Purchaser a written notice Response Period and the provisions of Section 4.2(b) in respect thereof, the determination board of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined COS determines in good faith, after consultation with Vitran’s its financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b))Proposal; and
(viiv) Vitran has terminated COS concurrently terminates this Agreement pursuant to Section 20(a)(iii)25.1(g) and has paid any applicable or concurrently pays to Suncor the Termination Fee Payment pursuant to Section 19(b)4.3.
(b) During the Matching Response Period: (i) Purchaser , Suncor will have the opportunity (right, but not the obligation) , to offer to amend in writing the Arrangement and terms of this Agreement and the Offer. COS agrees that, if requested by Suncor, it will negotiate with Suncor in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser good faith to amend the terms of this Agreement and the Arrangement Offer. The board of directors of COS will review any such written amendment to determine, in good faith after consultation with Vitran’s outside legal in the exercise of its fiduciary duties, and upon the advice of its financial advisors, in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting to which Suncor is responding would be a Superior Proposal ceasing when assessed against the Offer as proposed by Suncor to be a amended. If the board of directors of COS does not so determine, the board of directors of COS will cause COS to enter into an amendment to this Agreement reflecting the proposal by Suncor to amend the terms of the Offer and upon the execution by the Parties of such amendment will reaffirm its recommendation of the Offer, as so amended. If the board of directors of COS does so determine, COS may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments , subject to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed compliance with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoingSection 4.2(a)(v).
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal (including any Superior Proposal) that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran COS Shareholders shall constitute a new Acquisition Proposal (or other material terms or conditions thereof a new Superior Proposal, where applicable) for the purposes of this Section 4.2 and Purchaser Suncor shall not have the right to further amend the Arrangement be afforded a new Response Period in respect of a third each such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 2 contracts
Samples: Support Agreement (Suncor Energy Inc), Support Agreement
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that would reasonably be expected to constitute a Superior Proposal prior to the approval of the Arrangement Resolution by the Affected Securityholders the Board (or any committee thereof) may, subject to compliance with Part 7, enter into a definitive agreement with respect to such Superior Proposal or withdraw or modify the Board Recommendation, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Part 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement or withdraw or modify the Board Recommendation with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(vd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(d);
(vif) during any Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; and
(g) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.4(2), the directors of Vitran Board (i) have has determined in good faith, after completing a financial review and consultation with Vitran’s its outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that it is necessary for the Board enter into a definitive agreement with respect to such Superior Proposal or withdraw or modify the Board Recommendation in order to properly discharge its fiduciary duties; and
(viih) Vitran has terminated this prior to entering into such definitive agreement, the Company terminates the Agreement pursuant to Section 20(a)(iii)27.1(a)(iv)(B) and paid any applicable upon payment to the Purchaser of the Company Termination Fee payable by the Company pursuant to Section 19(b7.2(a)(i).
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran shall Board will review any offer made by the Purchaser and Bridgeway under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after completing a financial review and consultation with Vitran’s outside legal and financial advisorslegal, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran shall the Company will negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall the Company will promptly so advise the Purchaser and the Parties shall will amend this Agreement to reflect such offer made by the Purchaser, and shall will take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Affected Securityholders or other material terms or conditions thereof will constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have will be afforded a new five Business Day Matching Period from the right later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Company.
(d4) The Board will promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company will provide the Purchaser and its outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven five Business Days before the Vitran Meeting, Vitran shall the Company will either proceed with or shall will postpone the Vitran Meeting to a date that is not more than seven five Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaserthe Purchaser and Bridgeway.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 2 contracts
Samples: Arrangement Agreement (Bridgeway National Corp.), Arrangement Agreement
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and prior to the approval of the intention of Arrangement Resolution by the directors of Vitran to Company Shareholders the Board may, or may cause the Company to, make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which if and only if:
(a) the Company has been, and continues to be, in compliance with its obligations under this Article 5;
(b) the Company or its Representatives have delivered to the Purchaser a written notice will include of the director’s determination regarding of the value Board that it has received a Superior Proposal and of the intention to approve, recommend or range of enter into a definitive agreement with respect to such Superior Proposal, including a notice as to the value in financial terms that the directors of Vitran haveBoard has, in consultation with Vitran’s its financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (the “Superior Proposal Notice”);
(vc) the Company or its Representatives have provided to the Purchaser a copy of any proposed definitive agreement for the Superior Proposal;
(d) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the letter of intent or definitive agreement relating to such for the Superior Proposal;
(vie) if Purchaser has offered to amend this Agreement and after the Arrangement pursuant to Section 18(b)Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s outside its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2)); and
(viif) Vitran has terminated prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee Amount pursuant to Section 19(b8.2(2).
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser to amend the terms of this Agreement and the Arrangement in good faith faith, after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser and/or its affiliates to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If as a consequence of the directors of Vitran determine foregoing the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Company Shareholders or other material terms or conditions thereof and Purchaser shall not have constitute a new Acquisition Proposal for the right to further amend purposes of this Section 5.4, provided that the Arrangement Matching Period in respect of a third such amendment or modification to any new Acquisition Proposal shall extend only until the later of the end of the initial five (5) Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice for the new Acquisition Proposal.
(d4) Nothing in this Agreement shall prohibit the Board from responding through a directors’ circular or otherwise as required by applicable Securities Laws to an Acquisition Proposal that it determines is not a Superior Proposal. Further, nothing in this Agreement shall prevent the Board from making any disclosure to the Company Shareholders if the Board, acting in good faith and upon the advice of its outside legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Board or such disclosure is otherwise required under Law; provided, however, that, notwithstanding the Board shall be permitted to make such disclosure, the Board shall not be permitted to make a Change in Recommendation, other than as permitted by Section 5.4(1).
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven five (5) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or be entitled to, and shall upon request from the Purchaser, postpone the Vitran Company Meeting to a date that is not more than seven fifteen (15) Business Days after the scheduled date of the Vitran MeetingCompany Meeting (and, as directed by Purchaserin any event, prior to the Outside Date).
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 2 contracts
Samples: Arrangement Agreement (Valens Company, Inc.), Arrangement Agreement (SNDL Inc.)
Right to Match. (a) Vitran may take Subject to Section 6.2(b), Augusta agrees that it will not accept, approve, recommend or enter into any action that is prohibited by Sections 16(a)(iii) agreement, understanding or (iv) arrangement in respect of any an Acquisition Proposal if (other than a confidentiality agreement permitted by Section 6.1(d)) and/or withdraw, modify or qualify its approval or recommendation in respect of the Offer and only ifrecommend or approve the Acquisition Proposal, unless:
(i) such the Augusta Board of Directors has determined that the Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran Augusta has been, and continues to be, in compliance complied with its obligations under Sections 16all other provisions of this Article 6 and has provided the Offeror with a copy of the Acquisition Proposal (including, 17 and 18if applicable, a copy of any proposed agreement relating to such Acquisition Proposal);
(iii) such Acquisition Proposal is in writing a period (the “Response Period”) of five (5) business days shall have elapsed from the later of (A) the date on which the Offeror received written notice from the Augusta Board of Directors that the Augusta Board of Directors determined, subject to compliance with this Section 6.2, to accept, approve, recommend or enter into a binding agreement to proceed with the Superior Proposal, and Purchaser has been provided with (B) the date the Offeror received a copy of the letter of intent or agreement relating to such Superior Acquisition Proposal;
(iv) Vitran has delivered to after the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(v) at least five Business Days (the “Matching Response Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors Augusta Board of Vitran (i) have Directors has determined in good faith, after consultation with Vitran’s its financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b))Proposal; and
(viiv) Vitran has terminated Augusta concurrently terminates this Agreement pursuant to Section 20(a)(iii)28.1(i) and has paid any applicable to the Offeror the Termination Fee Payment pursuant to Section 19(b6.3(a)(ii).
(b) During the Matching Response Period: (i) Purchaser , the Offeror will have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement Offer. The Augusta Board of Directors will review any proposal by the Offeror to amend the terms of the Offer in order to determine, in good faith after consultation with Vitran’s outside legal and financial advisors, in order the exercise of its fiduciary duties whether the Offer as it is proposed by the Offeror to determine whether such offer be amended would, upon acceptanceacceptance by Augusta, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments Proposal compared to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such proposed amended termsOffer. If the directors Augusta Board of Vitran determine that such Acquisition Proposal would cease Directors does so determine, the Augusta Board of Directors will cause Augusta to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend enter into an amendment to this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to reflecting the foregoingamended Offer.
(c) The right Augusta Board of Purchaser under Directors shall promptly (and in any event within three business days) reaffirm its recommendation of the Offer by news release after the Augusta Board of Directors determines that the proposed amendment to the Contemplated Transactions and the Offer would result in an Acquisition Proposal that was publicly announced not being a Superior Proposal and the Offeror has so amended the terms of this Section 18 Agreement. The Offeror and its counsel shall be given a reasonable opportunity to amend review and comment on the Arrangement form and content of any such news release and Augusta shall apply give reasonable consideration to a maximum of two amendments or modifications all comments made by the Offeror and its counsel.
(d) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Augusta Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 and Purchaser the Offeror shall not have the right to further amend the Arrangement be afforded a new Response Period in respect of a third each such amendment or modification to any Acquisition Proposal.
(de) If Vitran provides Nothing in this Agreement shall prevent the Augusta Board of Directors from responding through a directors’ circular or otherwise as required by applicable Laws or complying with Rule 14d-9 and Rule 14e-2 promulgated under the U.S. Exchange Act, in respect of an Acquisition Proposal that it determines is not a Superior Proposal Notice Proposal. The Offeror and its counsel shall be given a reasonable opportunity to Purchaser after a date that is less than seven Business Days before review and comment on the Vitran Meeting, Vitran content of any directors’ circular prior to its printing and Augusta shall either proceed with or shall postpone give reasonable consideration to all comments made by the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserOfferor and its counsel.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 2 contracts
Samples: Support Agreement (HudBay Minerals Inc.), Support Agreement (Augusta Resource CORP)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders the Board may, or may cause the Company to, subject to compliance with Section 8.2(3), enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16Section 5.1, 17 Section 5.2 and 18Section 5.3 in all material respects;
(iiib) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent Company or agreement relating to such Superior Proposal;
(iv) Vitran has its Representatives have delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(vc) the Company or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all ancillary documentation (and supporting materials) containing material terms and conditions of the Superior Proposal (including any financing documents subject to customary confidentiality provisions) provided to the Company, including the cash value that the Board has, after consultation with outside financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(d) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the letter proposed definitive agreement for the Superior Proposal and all ancillary documentation (and supporting materials) containing material terms and conditions of intent or agreement relating the Superior Proposal (including any financing documents subject to such customary confidentiality provisions) provided to the Company, including the cash value that the Board has, after consultation with outside financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal;
(vie) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(f) after the Matching Period, the directors of Vitran Board has determined in good faith (i) have determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisorsadvisor, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) after consultation with its outside legal counsel, that the failure to take the relevant action would be inconsistent with its fiduciary duties; and
(viig) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b8.2(3).
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or amends or modifies other material terms or conditions thereof and Purchaser shall not have constitute a new Acquisition Proposal for the right to further amend purposes of this Section 5.4, provided that the Arrangement Matching Period in respect of such new Acquisition Proposal shall be three (3) Business Days from the date that is the later of the date on which the Purchaser receives the new Superior Proposal Notice and the date on which the Purchaser receives a third copy of the documentation referred to in Section 5.4(1)(d) above with respect to such amendment or modification to any Acquisition new Superior Proposal.
(d4) The Board will promptly reaffirm the Board Recommendation by press release after: (a) the Board determines any Acquisition Proposal that has been publicly announced or publicly disclosed is not a Superior Proposal; or (b) the Board determines that a proposed amendment to the terms of the Arrangement would result in any Acquisition Proposal which has been publicly announced or made not being a Superior Proposal, and the Purchaser has so amended the terms of the Arrangement. The Purchaser and its legal counsel will be given a reasonable opportunity to review and comment on the form and content of any such press release and the Company shall give reasonable consideration to any comments made by the Purchaser and its legal counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven (7) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven (7) Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserCompany Meeting but in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(e6) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any Any violation of the restrictions set forth in these sections this Article 5 by Vitran, the Vitran Subsidiaries Subsidiary or a Representative of the respective Representatives is Company will be deemed to be a breach of these sections this Article 5 by Vitranthe Company for which the Company will be responsible.
(7) Nothing contained in this Agreement shall prevent the Board from complying with Section 2.17 of National 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 an Acquisition Proposal or from calling and/or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the CBCA or taking any other action to the extent ordered or otherwise mandated by a Governmental Entity.
Appears in 2 contracts
Samples: Arrangement Agreement (Spire Global, Inc.), Arrangement Agreement (Spire Global, Inc.)
Right to Match. 5.7.1. Subject to Section 5.7.2, WSI covenants that it will not accept, approve, recommend (or change or withdraw its recommendation relating to the Agreement, except in the circumstances set forth in the last sentence of Section 5.6.1) or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality agreement permitted by Section 5.6.4) unless:
(a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any an Acquisition Proposal if has been made that the board of directors of WSI determines in good faith after consultation with its financial advisors and only if:
(i) such Acquisition Proposal outside legal counsel constitutes a Superior Proposal;
(iib) Vitran WSI has been, and continues to be, in compliance complied with its obligations under Sections 16, 17 Section 5.6 and 18;
(iii) such Acquisition Proposal is in writing the other provisions of Section 5.7 and Purchaser has been provided IESI-BFC with a copy of the letter of intent or agreement relating to such Superior Proposal;
Proposal (iv) Vitran has delivered to the Purchaser together with a written notice from the board of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination WSI regarding the value or range of value in and financial terms that the board of directors of Vitran have, WSI has in consultation with Vitran’s its financial advisors, advisors determined should be ascribed to any non-cash consideration, if any, consideration offered under the said Superior Proposal (the “Superior Proposal Notice”Proposal);
(vc) at least five Business Days a period (the “Matching Response Period”) of three (3) Business Days shall have elapsed from the date that is the later of the date on which Purchaser IESI-BFC received written notice from the Superior Proposal Notice and board of directors of WSI that the date on which Purchaser received board of directors of WSI determined, subject only to compliance with this Section 5.7, to accept, approve, recommend or enter into a copy of binding agreement to proceed with the letter of intent or agreement relating to such Superior Proposal;
(vid) if Purchaser IESI-BFC has offered proposed to amend the terms of this Agreement and the Arrangement pursuant to in accordance with Section 18(b)5.7.2, the board of directors of Vitran (i) WSI shall have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such the Acquisition Proposal continues to constitute a Superior Proposal (compared to after taking into account the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b))amendments; and
(viie) Vitran has WSI shall have terminated this Agreement pursuant to Section 20(a)(iii)27.4.1(e) and shall have paid any applicable Termination Fee pursuant to the fees prescribed by Section 19(b)5.8.
(b) 5.7.2. During the Matching Response Period: (i) Purchaser , IESI-BFC will have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and Agreement. The board of directors of WSI will review any such proposal by IESI-BFC to amend the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisorsterms of the Agreement, in order including an increase in, or modification of, the consideration to be received by the holders of WSI Common Stock, to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting to which IESI-BFC is responding would be a Superior Proposal ceasing when assessed against the Agreement as it is proposed by IESI-BFC to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to amended. If the terms board of directors of WSI does not so determine, the board of directors of WSI will promptly reaffirm its recommendation of the transactions contemplated under this Agreement and Agreement. If the Arrangement as would enable Purchaser board of directors of WSI does so determine, WSI may approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications 5.7.3. Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof holders of WSI Common Stock shall constitute a new Acquisition Proposal for the purposes of this Section 5.7 and Purchaser IESI-BFC shall not have the right to further amend the Arrangement be afforded a new Response Period in respect of a third each such amendment or modification to any Acquisition Proposal.
(d) 5.7.4. If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days the Response Period would not terminate before the Vitran date fixed for the WSI Stockholders Meeting, Vitran WSI shall either proceed with or shall postpone adjourn the Vitran WSI Stockholders Meeting to a date that is not more than seven at least one (1) Business Days Day after the scheduled date expiration of the Vitran Meeting, as directed by PurchaserResponse Period.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 2 contracts
Samples: Merger Agreement (Waste Services, Inc.), Merger Agreement (IESI-BFC LTD)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Common Shareholders the Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
(vd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five four Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(d);
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board (i) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to recommend that the Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders securityholders of the Company or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new four Business Day Matching Period from the right later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven 10 Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone the Vitran Company Meeting to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran Company Meeting, as directed by the Purchaser.
(e6) Vitran The Company shall advise the Vitran its Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 this Article 5 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.this
Appears in 2 contracts
Samples: Arrangement Agreement (Cnooc LTD), Arrangement Agreement (Nexen Inc)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If a Party receives an Acquisition Proposal that constitutes a Superior Proposal (the “Receiving Party”) prior to, in the case of Aphria being the Receiving Party, the approval of the Arrangement Resolution by the Aphria Shareholders, and in the case of Tilray being the Receiving Party, the approval of the Tilray Resolutions by the Tilray Shareholders, the Receiving Party may, subject to compliance with Section 7.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the person or persons making such Acquisition Superior Proposal constitutes a was not restricted from making such Superior ProposalProposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purposes or similar restriction with the Receiving Party or its Subsidiaries;
(iib) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Receiving Party has delivered to the Purchaser other Party a written notice of the determination of the Receiving Party’s board of directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Receiving Party’s board of directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the directorReceiving Party’s determination board of directors regarding the value (or range of value values) in financial terms that the directors board of Vitran havedirectors, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the such Superior Proposal (the “Superior Proposal Notice”);
(vc) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to a Receiving Party in connection therewith;
(d) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser the other Party received the Superior Proposal Notice and the date on which Purchaser such other Party received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(c);
(vie) if Purchaser during any Matching Period, such other Party has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(f) after the Matching Period, the Receiving Party’s board of directors of Vitran (i) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser the other Party under Section 18(b5.4(2))) and that the failure by the board of directors to take such action would be inconsistent with its fiduciary duties; and
(viig) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Receiving Party terminates this Agreement pursuant to Section 20(a)(iii)2) 7.2, and paid any applicable pays the Tilray Termination Fee Amount or the Aphria Termination Amount, as applicable, pursuant to Section 19(b)7.3.
(b2) During the Matching Period, or such longer period as the Receiving Party may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the Receiving Party’s board of directors of Vitran shall review any offer made by Purchaser the other Party under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Receiving Party shall negotiate negotiate, and cause its Representatives to negotiate, in good faith with Purchaser the other Party to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser the other Party to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the Receiving Party’s board of directors of Vitran determine determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Receiving Party shall promptly so advise Purchaser the other Party and the Parties shall amend this Agreement to reflect such offer made by Purchaserthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and Purchaser the other Party shall not have be afforded a new five Business Day Matching Period from the right later of the date on which such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(c) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Receiving Party.
(d4) The Receiving Party’s board of directors shall promptly reaffirm the Aphria Board Recommendation or the Tilray Board Recommendation, as the case may be, by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement as contemplated Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Receiving Party shall provide the other Party and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the other Party and its counsel.
(5) If Vitran the Receiving Party provides a Superior Proposal Notice to Purchaser after the other Party on a date that is less than seven 10 Business Days before the Vitran Aphria Meeting or the Tilray Meeting, Vitran shall either as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or shall adjourn or postpone such Aphria Meeting or Tilray Meeting, as the Vitran Meeting case may be, in accordance with the terms of this Agreement to a date specified by the other Party that is not more than seven 10 Business Days after the scheduled date of the Vitran Aphria Meeting or the Tilray Meeting, as directed by Purchaserthe case may be, provided that in no event shall such adjourned or postponed meeting be held on a date that is less than five Business Days prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 2 contracts
Samples: Arrangement Agreement (Aphria Inc.), Arrangement Agreement (Tilray, Inc.)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution in accordance with the Interim Order, the Board may, subject to compliance with Article 7 and Section 8.2, authorize the Company to enter into a definitive agreement with respect to such Acquisition Proposal or make a Change in Recommendation, if and only if:
(i) such Acquisition Proposal constitutes did not result from a Superior Proposalbreach by the Company of its obligations under Section 5.1 and Section 5.2;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to enter into such definitive agreement or make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which Acquisition Proposal and notice will include as to the director’s determination regarding the value or range of value in financial terms that the directors of Vitran haveBoard has, in consultation with Vitran’s its financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (the a “Superior Proposal Notice”);
(viii) the Company has provided the Purchaser with a copy of the proposed definitive agreement for the Superior Proposal, together with all materials related to any financing required for such proposal and any valuation of non-cash consideration;
(iv) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating materials set forth in Section 5.4(1)(iii) (the “Matching Period”);
(v) during any Matching Period, the Purchaser has the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(vi) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.4(2), the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b)5.4(2); and
(vii) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(iii)(b) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(v) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and (iiiii) Vitran if the Board determines that the Acquisition Proposal previously determined to constitute a Superior Proposal would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If ; provided, however, that in the directors of Vitran determine event that such the Acquisition Proposal would cease to be a Superior is an offer, proposal or inquiry under subsection (i) of the definition of Acquisition Proposal, Vitran then:
(i) the Purchaser shall promptly so advise Purchaser not have the right to make an offer to amend the terms of this Agreement and the Parties Arrangement to constitute an acquisition by the Purchaser of all or substantially all of the assets of the Company rather than the acquisition of all of the outstanding Common Shares; and
(ii) the Company shall not be required to negotiate to amend the terms of this Agreement and the Arrangement to reflect such offer made constitute an acquisition by Purchaser, and shall take and cause to be taken the Purchaser of all such actions as are necessary to give effect to or substantially all of the foregoingassets of the Company rather than the acquisition of all of the outstanding Common Shares.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Company Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and the Purchaser shall not have be afforded an additional three Business Day Matching Period from the right to further amend date on which the Arrangement in respect of a third such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Purchaser received the Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 all other documents and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed materials required to be a breach of these sections by Vitranprovided to the Purchaser pursuant to Section 5.4(1)(1)(iii).
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) If the Seller or (iv) in respect of any the Seller Parent or their respective Representatives receives a bona fide Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy that the board of directors of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal Seller Parent determines in good faith constitutes a Superior Proposal and prior to the satisfaction of the intention Seller Parent Shareholder Approval Condition, the board of directors of the directors of Vitran Seller Parent may, subject to make a Change in compliance with Clause 5.10, (i) withdraw the Seller Parent Recommendation and to accept, approve, endorse, recommend or and/or (ii) enter into a definitive agreement with respect to such Superior Proposal, which (subject to Clause 5.11(a)(iii)), if and only if:
(i) the Seller and the Seller Parent (as applicable) have delivered to the Purchaser a written notice will include of the director’s determination intention of the board of directors of the Seller Parent to take such action with respect to such Superior Proposal, and such notice contains a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Seller and/or the Seller Parent in connection therewith along with details regarding the value or range of value in and financial terms that the board of directors of Vitran havethe Seller Parent, in consultation with Vitran’s its financial advisorsadvisers, has determined should be ascribed to any non-non cash consideration, if any, consideration offered under such Acquisition, (the Superior Proposal (the “Superior Proposal Notice”);
(vii) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior ProposalNotice;
(viiii) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Clause 5.11(b), to offer to amend this Agreement and the Arrangement pursuant transactions set out herein in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(iv) after the Matching Period, the board of directors of Vitran (i) have the Seller Parent has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement Agreement as proposed to be amended by the Purchaser under Section 18(bClause 5.11(b)); and
(viiv) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Seller or the Purchaser terminates this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b)Clause 13.
(b) During the Matching Period, or such longer period as the Seller and/or the Seller Parent may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the board of directors of Vitran the Seller Parent shall review any offer made by the Purchaser under Clause 5.11(a)(iii) to amend the terms of this Agreement and the Arrangement transactions contemplated herein in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Seller and the Seller Parent (as applicable) shall make their respective Representatives reasonably available to negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as transactions contemplated herein such that it would enable Purchaser cause such Superior Proposal to proceed with the Transactions contemplated by this Agreement on such amended termsno longer constitute a Superior Proposal. If the board of directors of Vitran determine the Seller Parent determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Seller and the Seller Parent shall promptly so advise the Purchaser as soon as reasonably practicable and, to the extent applicable, the Seller Parent, the Seller and the Parties Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall (to the extent legally permissible and taking into account applicable fiduciary duties) take and cause to be taken all such actions as are reasonably necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive material amendment or modifications modification to any Acquisition Superior Proposal that results in an a material increase in, or material modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders shareholders of the Seller Parent or other material terms or conditions thereof shall constitute a new Superior Proposal for the purposes of this Clause 5.11, and the Purchaser shall not have be afforded a new five Business Day Matching Period from the right date on which the Purchaser received the Superior Proposal Notice relating to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Seller Parent.
(d) The board of directors of the Seller Parent shall reaffirm the Seller Parent Recommendation as soon as reasonably practicable after any Acquisition Proposal which is not determined to be a Superior Proposal or the board of directors of the Seller Parent determines that a proposed amendment to the terms of this Agreement as contemplated under Clause 5.11(b) would result in an Acquisition Proposal no longer being a Superior Proposal. The Seller and/or the Seller Parent shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any press releases and shall take into consideration all reasonable amendments to such press release as reasonably requested by the Purchaser and its counsel (provided such amendments are provided by the Purchaser reasonably in advance of publication of any such press releases).
(e) If Vitran the Seller Parent provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven 10 Business Days before the Vitran Meetingmeeting of the shareholders of the Seller Parent convened to approve the Proposed Transaction, Vitran the Seller Parent shall either proceed with or or, to the extent reasonably practicable and legally permissible, shall postpone the Vitran Meeting such shareholders meeting to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran Meeting, as directed by Purchasersuch shareholders meeting.
(ef) Vitran The Seller Parent shall advise the Vitran Subsidiaries Target Companies and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 this Clause 5 and any violation of the restrictions set forth in these sections this Clause 5.11 by Vitran, the Vitran Subsidiaries Seller or the Seller Parent or their respective Representatives is deemed to be a breach of these sections by Vitranthis Clause 5.11.
Appears in 1 contract
Samples: Share Purchase Agreement
Right to Match. (a1) Vitran If Mylk receives an Acquisition Proposal that constitutes or may take any action constitute a Superior Proposal prior to the approval of the Arrangement Resolution by the Mylk Shareholders, the Mylk Board may, subject to compliance with Article 7, enter into a definitive agreement with respect to such Acquisition Proposal, that is prohibited by Sections 16(a)(iii) or (iv) in respect of any Acquisition Proposal a Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill or similar restriction;
(iib) Vitran Mylk has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Mylk has delivered to the Purchaser EATS a written notice of the determination of the directors of Vitran Mylk Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Mylk Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such definitive agreement, together with a definitive agreement with respect to such Superior Proposal, which written notice will include from the director’s determination Mylk Board regarding the value or range of value in and financial terms that the directors of Vitran haveMylk Board, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-non- cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”)Notice”);
(d) Mylk has provided EATS a copy of the proposed definitive agreement for the Superior Proposal;
(ve) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser EATS received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or proposed definitive agreement relating to such for the Superior Proposal;Proposal from Mylk;
(vif) if Purchaser during any Matching Period, EATS has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) if applicable, the directors of Vitran (i) have Mylk Board has determined in good faith, after consultation with VitranXxxx’s outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser EATS under Section 18(b5.4(2));
(h) the Mylk Board has determined in good faith, after consultation with Xxxx’s outside legal counsel that it is necessary for the Mylk Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties;
(i) such Superior Proposal does not provide for the payment of any break, termination or other fees or expenses to any person in the event that Mylk completes the transactions with EATS contemplated by this Agreement or any other similar transaction with EATS agreed to prior to the termination of this Agreement; and
(viij) Vitran has terminated prior to entering into such definitive agreement Mylk terminates this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b7.2(1)(c)(ii).
(b2) During the Matching Period, or such longer period as Mylk may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Mylk Board shall review any offer made by Purchaser EATS under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran Mylk shall negotiate in good faith with Purchaser EATS to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser EATS to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Mylk Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran Mylk shall promptly so advise Purchaser EATS, and the Parties Mylk and EATS shall amend this Agreement to reflect such offer made by PurchaserEATS, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase inshall constitute a new Acquisition Proposal for the purposes of this Section 5.3, or modification of, and EATS shall be afforded a new five (5) Business Day Matching Period from the consideration (or value later of such consideration) to be the date on which EATS received by the Vitran Shareholders or other material terms or conditions thereof Superior Proposal Notice and Purchaser shall not have a copy of the right to further amend definitive agreement for the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from Mylk.
(d4) The Mylk Board shall promptly reaffirm the Mylk Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Mylk Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. Mylk shall provide EATS and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by EATS and its counsel.
(5) If Vitran Mylk provides a Superior Proposal Notice to Purchaser EATS after a date that is less than seven ten (10) Business Days before the Vitran Mylk Meeting, Vitran Mylk shall either proceed with or shall postpone the Vitran Meeting Mylk Meeting, as directed by EATS to a date that is not more than seven ten (10) Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserMylk Meeting.
(6) Nothing contained in this Section 5.3 shall limit in any way the obligation of Mylk to convene and hold the Mylk Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(e7) Vitran Nothing contained in this Article 5 shall advise prohibit the Vitran Subsidiaries Mylk Board from responding through a directors’ circular or otherwise as required by Law to an Acquisition Proposal that it determines is not a Superior Proposal, provided that Mylk shall provide EATS and their respective Representatives its outside legal counsel with a reasonable opportunity to review the form and content of the prohibitions set out in Sections 16, 17 such circular or other disclosure and 18 shall make all reasonable amendments as requested by EATS and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitranits counsel.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a1) Vitran If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Board may, or may take any action that is prohibited by Sections 16(a)(iii) or (ivcause the Company to make a Change in Recommendation and, subject to compliance with Section 8.2(3), terminate this Agreement pursuant to Section 7.2(1)(c)(ii) in order to enter into a definitive agreement with respect of any Acquisition Proposal to such Superior Proposal, if and only if:
: (ia) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
Article 5 in all material respects; (iiib) such the Acquisition Proposal is in writing and Purchaser has been provided with did not arise, directly or indirectly, as a copy result of a violation by the Company of this Article 5 or by the OCM Shareholders of the letter of intent Company Support and Voting Agreements; (c) the Company or agreement relating to such Superior Proposal;
(iv) Vitran has its Representatives have delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to enter into such definitive agreement and make a Change in Recommendation and to acceptRecommendation, approve, endorse, recommend or enter into together with a definitive agreement with respect to such Superior Proposal, which written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
; (vd) the Company or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal (including any financing commitments or other documents containing material terms and conditions of such Superior Proposal); (e) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received and a copy of the letter proposed definitive agreement for the Superior Proposal from the Company (including any financing commitments or other documents containing material terms and conditions of intent or agreement relating to such Superior Proposal;
); (vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal; (g) after the Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s outside its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2)); and
and (viih) Vitran the Board has terminated determined, in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Change in Recommendation and terminate this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant enter into a definitive agreement with respect to Section 19(b)such Superior Proposal would be inconsistent with its fiduciary duties.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran shall Board shall, in good faith, review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have constitute a new Acquisition Proposal for the right to further amend purposes of this Section 5.4, provided that the Arrangement Matching Period in respect of such new Acquisition Proposal shall extend only until the later of the end of the initial five (5) Business Day Matching Period and 36 hours after the Purchaser received the Superior Proposal Notice for the new Superior Proposal and a third copy of the proposed definitive agreement for the new Superior Proposal (including any financing commitments or other documents containing material terms and conditions of such amendment or modification to any Acquisition Superior Proposal).
(d4) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven ten (10) Business Days before the Vitran MeetingCompany Meeting or if the Company Meeting is to be held during a Matching Period, Vitran the Company shall either proceed with or shall postpone the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven ten Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserCompany Meeting but in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(e5) Vitran Nothing contained in this Agreement shall advise prohibit the Vitran Subsidiaries and their respective Representatives Board from making any disclosure to any securityholders of the prohibitions set out Company prior to the Company Meeting, if, in Sections 16, 17 and 18 and any violation the good faith judgment of the restrictions set forth Board, after consultation with outside legal counsel, failure to make such disclosure would be inconsistent with the Board’s exercise of its fiduciary duties or disclosure is otherwise required by law; provided that the Purchaser and its counsel shall be provided with a reasonable opportunity to review and comment on any such disclosure and the Board shall give reasonable consideration to such comments. In addition, nothing contained in these sections this Agreement shall prohibit the Board from responding, within the time and in the manner required by Vitranapplicable Securities Laws, to any Acquisition Proposal by take-over or tender or exchange offer made for the Vitran Subsidiaries Shares that it determines is not a Superior Proposal; provided that the Purchaser and its counsel shall be provided with a reasonable opportunity to review and comment on any such response and the Board shall give reasonable consideration to such comments. Nothing contained in this Section 5.4(5) shall (a) permit the Board to make a Change in Recommendation other than as permitted by Section 5.4 and (b) limit in any way (i) the rights of the Purchaser pursuant to Section 7.2(1)(d)(ii) or (ii) the respective Representatives is deemed obligations of the Company contained in this Agreement, including the obligation to be a breach of these sections by Vitranconvene and hold the Company Meeting in accordance with Section 2.3.
Appears in 1 contract
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board (or any committee thereof) may, subject to compliance with Article 8 and Section 8.3, enter into a definitive agreement with respect to such Superior Proposal, withdraw the Board Recommendation and make a Change in Recommendation, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(ii) Vitran Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 7;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser Acquiror a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under such Acquisition Proposal (the "Superior Proposal Notice");
(iv) Company has provided Acquiror a copy of the proposed definitive agreement for the Superior Proposal (the “Superior Proposal Notice”)and all supporting materials, including any financing documents supplied to Company in connection therewith;
(v) at least five Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Purchaser Acquiror received the Superior Proposal Notice and the date on which Purchaser Acquiror received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 7.4(a)(iv);
(vi) if Purchaser during any Matching Period, Acquiror has offered had the opportunity (but not the obligation), in accordance with Section 7.4(b), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(vii) after the Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser Acquiror under Section 18(b7.4(b)); and
(viiviii) Vitran has terminated prior to or concurrently with entering into such definitive agreement Company terminates this Agreement pursuant to Section 20(a)(iii)28.2(d) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.3.
(b) During the Matching Period, or such longer period as Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by Purchaser Acquiror under Section 7.4(a) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran Company shall negotiate in good faith with Purchaser Acquiror to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser Acquiror to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran Company shall promptly so advise Purchaser Acquiror and the Parties Company and Acquiror shall amend this Agreement to reflect such offer made by PurchaserAcquiror, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 7.4, and Purchaser Acquiror shall not have be afforded a new three Business Day Matching Period from the right later of the date on which Acquiror received the Superior Proposal Notice and the date on which Acquiror received all of the materials set forth in Section 7.4(a)(iv) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from Company.
(d) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 7.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Company shall provide Acquiror and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Acquiror and its counsel.
(e) If Vitran Company provides a Superior Proposal Notice to Purchaser after Acquiror on a date that is less than seven 10 Business Days before the Vitran Special Meeting, Vitran shall either proceed with Acquiror will be entitled to require Company to adjourn or shall postpone the Vitran Special Meeting in accordance with the terms of this Agreement to a date specified by Acquiror that is not more than 10 days after the scheduled date of the Special Meeting, provided that in no event shall such adjourned or postponed meeting be held on a date that is less than five Business Days prior to the Outside Date. If a Matching Period would not terminate before the date fixed for the Special Meeting, Company shall adjourn or postpone the Special Meeting to a date that is not more than seven at least five Business Days after the scheduled date expiration of the Vitran Meeting, as directed by Purchaserapplicable Matching Period.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. 7.3.1 Each Party covenants that it will not accept, approve, endorse or recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than, for clarity, a confidentiality and standstill agreement permitted by Section 7.2.3) or make a Change in Recommendation as a result thereof unless:
(a) Vitran may take any action that is prohibited by Sections 16(a)(iiithe Party receiving such proposal (the “Receiving Party”) or (iv) in respect of any Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance complied with its obligations under Sections 16, 17 Section 7.2 and 18;
has provided the other Party (iiithe “Responding Party”) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and all related documentation described in Section 7.2.4; and
(b) a period (the “Response Period”) of four business days has elapsed from the intention of date that is the directors of Vitran later of: (x) the date on which the Responding Party receives written notice from the Receiving Party that it has determined, subject only to make a Change in Recommendation and compliance with this Section 7.3, to accept, approve, endorse, recommend or enter into a definitive binding agreement to proceed with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal ; and (the “Superior Proposal Notice”);
(vy) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received Responding Party receives a copy of the letter of intent or agreement relating Superior Proposal and all related documents described in Section 7.2.4.
7.3.2 During the Response Period, the Responding Party will have the right, but not the obligation, to such Superior Proposal;
(vi) if Purchaser has offered offer to amend this Agreement and the Plan of Arrangement, including modification of the consideration. The Receiving Party shall review any such offer by the Responding Party to amend this Agreement and the Plan of Arrangement pursuant to Section 18(b), determine whether the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute which the Responding Party is responding would continue to be a Superior Proposal (compared to the terms of when assessed against the Arrangement as it is proposed in writing by the Responding Party to be amended. If the Receiving Party determines that the Acquisition Proposal no longer constitutes a Superior Proposal, when assessed against this Agreement and the Plan of Arrangement as they are proposed to be amended by Purchaser under Section 18(b)); and
(vii) Vitran has terminated the Responding Party, the Receiving Party will cause it to enter into an amendment to this Agreement pursuant with the Responding Party incorporating the amendments to Section 20(a)(iii)2) the Agreement and paid any applicable Termination Fee pursuant to Section 19(b).
(b) During Plan of Arrangement as set out in the Matching Period: (i) Purchaser will have the opportunity (but not the obligation) to written offer to amend amend, and will promptly reaffirm its recommendation of the Arrangement and this Agreement in order for such by the prompt issuance of a press release to that effect. If the Receiving Party determines that the Acquisition Proposal to cease continues to be a Superior Proposal, (ii) the directors it may recommend that holders of Vitran shall review any offer made by Purchaser to amend the terms of its securities accept such Superior Proposal provided that before doing so it terminates this Agreement and pays the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisorsTermination Fee pursuant to Section 8.2.1(c)(ii) or Section 8.2.1(d)(ii), as applicable, in order to determine whether such offer wouldaccept or enter into an agreement, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser understanding or arrangement to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications 7.3.3 Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof holders of the Receiving Party’s securities shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Purchaser the Responding Party shall not have be afforded a new Response Period and the right to further amend the Arrangement rights afforded in Section 7.3.2 in respect of a third each such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days 7.3.4 Where at any time within ten days before the Vitran Aris Meeting or the GCM Meeting, Vitran shall either proceed as applicable, the Receiving Party has provided the Responding Party with a notice under Section 7.3.1(a) hereof, an Acquisition Proposal has been publicly disclosed or shall announced, and the Response Period has not elapsed, then, subject to applicable Laws, at the Responding Party’s request, the Receiving Party will postpone or adjourn the Vitran Aris Meeting or the GCM Meeting, as applicable, to a date that is acceptable to the Responding Party, acting reasonably, which shall not more be later than seven Business Days ten days after the scheduled date of the Vitran Aris Meeting or the GCM Meeting, as directed by Purchaser.
(e) Vitran shall advise applicable, and shall, in the Vitran Subsidiaries and their respective Representatives event that the Parties amend the terms of this Agreement pursuant to Section 7.3.2, ensure that the details of such amended Agreement are communicated to the shareholders of the prohibitions set out in Sections 16, 17 and 18 and any violation Receiving Party prior to the postponed meeting or resumption of the restrictions set forth in these sections by Vitranadjourned meeting, as the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitrancase may be.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board may, or may cause the Company to, subject to compliance with Section 8.2(3), enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, use, business purpose or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
(vd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal (including any financing commitments or other documents containing material terms and conditions of such Superior Proposal);
(e) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the letter proposed definitive agreement for the Superior Proposal (including any financing commitments or other documents containing materials terms and conditions of intent or agreement relating to such Superior Proposal) from the Company;
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board has determined in good faith (i) have determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisorsadvisor, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) after consultation with its outside legal counsel, that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(viih) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b8.2(3).
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement in respect date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of a third the proposed definitive agreement for the new Superior Proposal (including any financing commitments or other documents containing materials terms and conditions of such amendment or modification to any Acquisition new Superior Proposal) from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven ten (10) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven fifteen (15) Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserCompany Meeting but in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(e6) Vitran Nothing contained in this Section 5.4 shall advise limit in any way the Vitran Subsidiaries and their respective Representatives obligation of the prohibitions set out Company to convene and hold the Company Meeting in Sections 16, 17 and 18 and any violation accordance with Section 2.3 of the restrictions set forth this Agreement while this Agreement remains in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitranforce.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that the Board determines, in good faith, constitutes a Superior Proposal prior to the approval of the Arrangement Resolution in accordance with the Interim Order, the Board may, subject to compliance with Article 7 and Section 8.2, authorize the Company to enter into a definitive agreement with respect to such Superior Proposal or may make a Change in Recommendation, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill or similar restriction;
(ii) Vitran has been, and continues to be, in compliance with such Acquisition Proposal did not result from a breach by the Company of its obligations under Sections 16, 17 and 18this Article 5;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to enter into such definitive agreement with respect to such Acquisition Proposal or to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into (a “Superior Proposal Notice”);
(iv) the Company has provided the Purchaser with a copy of the proposed definitive agreement with respect for the Superior Proposal (if any) and all supporting materials supplied to such Superior Proposalthe Company in connection therewith, which notice will include including the director’s determination regarding the value or range of value in financial terms that the directors of Vitran haveBoard has, in consultation with Vitran’s its financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (the “Superior Proposal Notice”)Proposal;
(v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(iv) (the “Matching Period”);
(vi) if Purchaser has offered to amend this Agreement and after the Arrangement pursuant to Section 18(b)Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2)); and
(vii) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(iii)(b) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) the Purchaser will shall have the opportunity (but not the obligation) ), to offer to amend this Agreement and the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, ; (ii) the directors of Vitran Board shall review any offer made by the Purchaser to amend the terms of this Agreement and the Arrangement Arrangement, in good faith after consultation with Vitran’s outside legal and financial advisorsadvisors and in good faith, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran if the Board determines that such Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Company Securityholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and the Purchaser shall not have be afforded a new Matching Period in connection therewith, provided that, notwithstanding Section 5.4(1)(v) above, the right to further amend the Arrangement in respect duration of a third such amendment or modification to any Acquisition ProposalMatching Period shall be three Business Days rather than five Business Days.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal that is determined not to be a Superior Proposal if the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its legal counsel the reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its legal counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven ten Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with be entitled to, and the Purchaser shall be entitled to require the Company to, adjourn or shall postpone the Vitran Company Meeting to a date that is not more than seven ten Business Days after the scheduled date of the Vitran MeetingSuperior Proposal Notice; provided, as directed by Purchaserhowever, that the Company Meeting shall not be adjourned or postponed to a date later than the seventh Business Day prior to the Outside Date.
(e6) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any Any violation of the restrictions set forth in these sections this Article 5 by Vitranthe Company, the Vitran its Subsidiaries or the their respective Representatives is shall be deemed to be a breach of these sections this Article 5 by Vitranthe Company.
Appears in 1 contract
Samples: Arrangement Agreement (Student Transportation Inc.)
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iiiEither Party (the “Terminating Party”) or (iv) the directors thereof may, in respect of any Acquisition Proposal if and only Alternative Transaction, accept, approve or recommend, and/or enter into any agreement to effect an Alternative Transaction (the Party hereto other than the Terminating Party hereinafter referred to as the “Non-Terminating Party”) if:
(i) such Acquisition Proposal Alternative Transaction constitutes a Superior ProposalOffer;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser the Non-Terminating Party has been provided with a copy of the letter of intent or agreement relating to document containing such Superior ProposalOffer (with such deletions as are necessary to protect any confidential portions of such document, provided that material terms and conditions of, and the identity of the person making, such Superior Offer may not be deleted);
(iviii) Vitran has delivered to five Business Days have elapsed from the Purchaser a written date on which the Non-Terminating Party received notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and Terminating Party to accept, approve, endorse, approve or recommend or to enter into a definitive an agreement with in respect to of such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal Offer (the “Notice of Superior Proposal NoticeOffer”);
(v) at least and the Non-Terminating Party has not, within such five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered Day period, agreed to amend this Agreement and so that the Arrangement pursuant to Section 18(b)consideration hereunder will at least match such Superior Offer, as determined by the directors of Vitran (i) have determined the Terminating Party in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and
(viiiv) Vitran if the Non-Terminating Party has terminated elected not to match the Superior Offer, the Terminating Party terminates this Agreement pursuant to Section 20(a)(iii)2) 8.2 hereof and paid any applicable Termination Fee pursuant makes the payment contemplated by, and in accordance with, Section 8.4 hereof. In the event that the Terminating Party provides the Non-Terminating Party with a Notice of Superior Offer on a date that is less than five Business Days prior to Section 19(b)the Meetings, the Parties shall adjourn the Meetings to a date that is not less than seven Business Days and not more than 30 Business Days after the Notice of Superior Offer.
(b) During the Matching Period: (i) Purchaser will five Business Day period referred to in Section 7.4(a), the Terminating Party agrees that the Non-Terminating Party shall have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and terms of this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the Agreement. The board of directors of Vitran shall the Terminating Party will review any offer made proposal by Purchaser the Non-Terminating Party to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine determine, in its discretion in the exercise of its fiduciary duties, whether such offer would, the Non-Terminating Party’s amended proposal upon acceptance, acceptance by the Terminating Party would result in the Acquisition Proposal previously constituting a such Superior Proposal Offer ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate Offer. If the board of directors of the Terminating Party so determines, it will enter into an amendment agreement to this Agreement with the Non-Terminating Party reflecting the Non-Terminating Party’s amended proposal. If the board of directors of the Terminating Party continues to believe, in good faith and after consultation with Purchaser to make financial advisors and outside counsel, that such amendments to Superior Offer remains a Superior Offer and therefore rejects the terms Non-Terminating Party’s amended proposal, the Terminating Party may, on termination of this Agreement in accordance with Section 8.2 and payment of the Arrangement Break Fee as would enable Purchaser required pursuant to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior ProposalSection 8.4, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaseraccept, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments approve, recommend or modifications to any Acquisition Proposal that results in enter into an increase inagreement, understanding or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement arrangement in respect of such Superior Offer. Each successive material modification of any Superior Offer shall constitute a third such amendment or modification new Superior Offer for purposes of Section 7.4 and the requirement under Section 7.4(a) to any Acquisition Proposalinitiate an additional five Business Day notice period.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement (Gold Standard Ventures Corp.)
Right to Match. (a1) Vitran may take If at any action that is prohibited by Sections 16(a)(iii) or (iv) in respect time following the date of any this Agreement and prior to obtaining the Required Securityholder Approval at the Meeting, the Corporation receives an unsolicited Acquisition Proposal that constitutes a Superior Proposal, the Board may authorize the Corporation to make a Change in Recommendation and/or enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(ia) subject to Section 5.1(3), the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to any existing confidentiality, standstill or similar restriction to which the Corporation is party;
(iib) Vitran such Superior Proposal did not arise, directly or indirectly, as a result of a violation by the Corporation directly or indirectly through its Subsidiaries or their respective Representatives of this Article 5 in any material respect, and the Corporation has been, been and continues to be, be in compliance with its obligations under Sections 16, 17 and 18this Article 5 in all material respects;
(iiic) such Acquisition Proposal is in writing and Purchaser the Corporation has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a with written notice of detailing the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under (the Superior Proposal (the “Superior Proposal Notice”);
(vd) the Corporation has provided the Purchaser with a copy of the proposed definitive agreement for the Superior Proposal and all schedules and exhibits thereto, together with any financing documents supplied to the Corporation in connection therewith;
(e) at least five three (3) Business Days (the “Matching Period”) shall have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter materials set forth in Section 5.4(1)(d) above (it being understood that the Corporation shall promptly (and in any event within twenty four (24) hours) inform the Purchaser of intent any amendment to the financial or agreement relating to other material terms of such Superior ProposalProposal during such period);
(vif) if Purchaser has offered to amend this Agreement and after the Arrangement pursuant to Section 18(b)Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s outside its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (Proposal, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2));
(g) after the Matching Period, the Board has determined, in good faith, after consultation with its legal counsel, that failure of the Board to make a Change in Recommendation and/or to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) Vitran has terminated prior to or concurrently with entering into a definitive agreement with respect to such Superior Proposal, the Corporation terminates this Agreement pursuant to Section 20(a)(iii)27.2(3)(b) and paid any applicable pays the Corporation Termination Fee in full pursuant to Section 19(b)7.3.
(b2) During the Matching Period, or such longer period as the Corporation may approve in writing for such purpose: (ia) the Purchaser will shall have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and terms of this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, and the Arrangement; (iib) the directors of Vitran Board shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine determine, in consultation with its financial and outside legal advisors, whether such offer wouldthe Purchaser’s amended offer, upon acceptance, result in would cause the Acquisition Proposal previously constituting a Superior Proposal ceasing giving rise to the Matching Period to cease to be a Superior Proposal; and (iiic) Vitran shall negotiate in good faith with Purchaser if the Board determines that the Acquisition Proposal giving rise to make such amendments Matching Period no longer constitutes a Superior Proposal compared to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease they are proposed to be a Superior Proposalamended by the Purchaser, Vitran the Corporation shall promptly (and in any event within twenty four (24) hours) so advise the Purchaser and the Parties shall amend this Agreement to reflect give effect to such offer made by Purchaseramendments, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive modification to any Acquisition Proposal that results in an increase into, or a modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other amendment to the material terms or conditions thereof shall constitute a new Acquisition Proposal for purposes of the requirements under Section 5.4, and the Purchaser shall not have be afforded a new three (3) Business Day Matching Period from the right to further amend later of the Arrangement date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in respect of a third such amendment or modification to any Acquisition ProposalSection 5.4(1)(d) above.
(d4) Upon the written request of Purchaser, the Board shall promptly reaffirm the Board Recommendation by press release (but on no more than three (3) occasions per Acquisition Proposal) after any Acquisition Proposal which is not determined by the Board to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such Acquisition Proposal, including a customary “stop-look-and-listen” or similar communication, shall not be considered to be in violation of this Section 5.4(4) provided the Board has re-affirmed the Board Recommendation before the end of such five (5) Business Day period). The Corporation shall provide the Purchaser and its outside legal advisors with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Corporation provides a Superior Proposal Notice to the Purchaser after a date that is less than seven five (5) Business Days before the Vitran Meeting, Vitran the Corporation may, and shall either proceed with if directed by the Purchaser acting reasonably, postpone or shall postpone adjourn the Vitran Meeting to a date that is not more than seven ten (10) Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaserbut in any event to a date that is not less than three (3) Business Days prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approval, the Board may, subject to compliance with Section 7.2 and Section 8.2, enter into a definitive written agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill use, business purpose or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 this Article 5 and 18has complied with its obligations under the Exclusivity Agreement;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
(vd) the Company has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or proposed definitive agreement relating to such for the Superior ProposalProposal from the Company;
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board has determined in good faith (i) have determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) after consultation with its outside legal counsel, that it is necessary for the Board to enter into such definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(viih) Vitran has terminated the Company concurrently terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable prior to or concurrently with such termination pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise Purchaser the Purchaser, and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five Business Day Matching Period from the right to further amend later of the Arrangement in respect date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of a third such amendment or modification to any Acquisition Proposalthe proposed definitive agreement for the new Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven 10 Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone or adjourn the Vitran Meeting Company Meeting, as directed by the Purchaser, to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran Company Meeting, as directed by Purchaserbut in any event to a date that is not less than five Business Days prior to the Outside Date.
(e6) Vitran Nothing contained in this Section 5.4 shall advise limit in any way the Vitran Subsidiaries and their respective Representatives obligation of the prohibitions set out Company to convene and hold the Company Meeting in Sections 16accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Article 5 shall prevent the Board from complying with Section 2.17 of National 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 an Acquisition Proposal that is not a Superior Proposal, 17 and 18 and any violation of the restrictions set forth in these sections by Vitranprovided however, for greater certainty, the Vitran Subsidiaries or Board is not permitted to shorten the respective Representatives deposit period unilaterally with respect to any Acquisition Proposal which is deemed to be a breach of these sections by Vitrantakeover bid.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a) Vitran may take Xxxxxx shall not accept, approve, recommend or enter into any action that is prohibited by Sections 16(a)(iiiagreement, arrangement or understanding to implement a Superior Proposal (other than a Similar Confidentiality Agreement) or (iv) in respect of any Acquisition Proposal if and only ifwithout:
(i) such Acquisition Proposal constitutes a Superior Proposalcomplying fully with the provisions of SECTION 5.4;
(ii) Vitran providing to Xxxxxx (1) written notice that the Board of Directors of Xxxxxx has beendetermined that it has received and is prepared to accept a Superior Proposal, and continues (2) a copy of any proposal or commitment to bemake a Superior Proposal executed by the Person making the Superior Proposal, in compliance with its obligations under Sections 16each case, 17 and 18as soon as possible but in any event not less than five Business Days prior to acceptance of the Superior Proposal by the Board of Directors;
(iii) if such Acquisition Proposal five Business Day period would not terminate on or before the date fixed for the Meeting, Xxxxxx shall adjourn the Meeting to a date that is in writing and Purchaser has been provided with a copy not less than two nor more than five Business Days after the expiration of the letter of intent or agreement relating to such Superior Proposalfive Business Day period;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement providing Xxxxxx with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and
(vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b).
(b) During the Matching Period: (i) Purchaser will have the an opportunity (but not the obligation) ), before the expiration of such five Business Day period, to offer propose to amend the Arrangement and this Agreement in order to provide for such Acquisition Proposal to cease to be consideration having a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal value and financial advisors, and other terms equivalent to or more favourable to the Shareholders than those contained in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If result that the directors of Vitran determine that such Acquisition Superior Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser ; and
(v) terminating this Agreement pursuant to SECTION 8.1(e) and paying the Parties shall Termination Fee to Xxxxxx.
(b) In the event that Xxxxxx agrees to amend this Agreement in the manner described in SUBSECTION 5.5(a)(iv), but otherwise on terms substantially the same as the terms of this Agreement, the Board of Directors of Xxxxxx shall consider the terms of the amendment and if it concludes the Superior Proposal is no longer a Superior Proposal, Xxxxxx shall not implement the proposed Superior Proposal and may not terminate this Agreement pursuant to reflect such offer made by PurchaserSECTION 8.1(e), and shall take and cause to be taken all such actions as are necessary to give effect agree to the foregoingamendments to this Agreement.
(c) The right of Purchaser under this Section 18 In the event that Xxxxxx does not agree to amend this Agreement as contemplated by SUBSECTION 5.5(b) and immediately prior to the Arrangement shall apply to a maximum termination of two amendments or modifications to any Acquisition this Agreement such Superior Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides constitutes a Superior Proposal Notice in comparison with the terms hereof, Xxxxxx may terminate this Agreement in accordance with SECTION 8.1(e) and thereafter may enter into an agreement in order to Purchaser after a date that is less than seven Business Days before implement the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserSuperior Proposal.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a1) Vitran If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Board may take any action that is prohibited by Sections 16(a)(iii) (based upon, amongst other things, the recommendation of the Special Committee), subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal or (iv) make a Change in Recommendation in respect of any Acquisition Proposal such Superior Proposal, if and only if:
(ia) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18Article 5 in all material respects;
(iiib) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to enter into a definitive agreement and make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(vc) the Company has provided the Purchaser a copy of the definitive agreement for the Superior Proposal and all other material agreements to be entered into in connection therewith;
(d) at least five four (4) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating materials referred to such Superior Proposalin Section 5.4(1)(c);
(vie) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(f) after the Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s the Company's outside legal counsel and financial advisorsadvisers, (i) that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) that the failure by the Board to cause the Company to enter into a definitive agreement and make a Change in Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viig) Vitran has terminated prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) [Superior Proposal] and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in its sole discretion in writing for such purpose: (ia) the Purchaser will shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior ProposalProposal and the Board (and Special Committee) shall, (ii) in consultation with the directors of Vitran shall Company's outside legal counsel and financial advisers, review any offer made by the Purchaser under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; , and (iiib) Vitran if the Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Plan of Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors Board determines (based upon, inter alia, the recommendation of Vitran determine the Special Committee) that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new full three (3) Business Day Matching Period from the right later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials referred to further amend in Section 5.4(1)(c) with respect to each new Superior Proposal from the Arrangement in respect of a third such amendment or modification to any Acquisition ProposalCompany.
(d4) The Board shall promptly reaffirm (subject to Section 5.1(1)(d)) the Board Recommendation by press release after any Acquisition Proposal which is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall give reasonable consideration to any comments provided by the Purchaser and its outside legal counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven ten (10) Business Days before the Vitran Meeting, Vitran the Company shall either proceed with or be entitled to and shall upon request from the Purchaser postpone the Vitran Meeting to a date that is not more than seven fifteen (15) Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaserbut in any event to a date that is not less than five (5) Business Days prior to the Outside Date.
(e6) Vitran Nothing contained in this Article 5 shall advise prohibit the Vitran Subsidiaries Board (or the Special Committee) from:
(a) responding through a directors' circular or otherwise as required by Law to an Acquisition Proposal, provided that the Company shall provide the Purchaser and their respective Representatives its outside legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give reasonable consideration to any comments provided by the Purchaser and its outside legal counsel; or
(b) calling or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the CBCA or taking any other action with respect to an Acquisition Proposal to the extent ordered or otherwise mandated by a court of competent jurisdiction in accordance with Law; provided, however, in each case that, notwithstanding that the Board shall be permitted to take the actions contemplated in Subparagraphs (a) and (b) above the Board shall not be permitted to make a Change in Recommendation except as pursuant to the terms of this Article 5.
(7) From the date of this Agreement until the earlier to occur of the prohibitions set out termination of this Agreement pursuant to Article 7 and the Effective Time, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement to the extent necessary to permit a confidential proposal being made to the Board (or any committee thereof); provided, that, the Board has determined in Sections 16good faith (after consultation with outside legal counsel) that failure to take such action would be inconsistent with its fiduciary duties.
(8) The Parties hereby acknowledge and agree that the Exclusivity Agreement, 17 dated as of July 11, 2022, by and 18 between the Parent and any violation the Company, shall terminate and be of no further force or effect as of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach date of these sections by Vitranthis Agreement.
Appears in 1 contract
Right to Match. (a1) Vitran may take If at any action that is prohibited by Sections 16(a)(iii) or (iv) in respect time following the date of any this Agreement and prior to obtaining the Required Shareholder Approval at the Meeting, the Corporation receives an unsolicited bona fide written Acquisition Proposal that constitutes a Superior Proposal, the Board may authorize the Corporation to make a Change in Recommendation or enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(ia) such Acquisition Superior Proposal constitutes did not arise as a Superior Proposal;
(ii) Vitran result of a violation by the Corporation directly or indirectly through its Subsidiaries or its or their respective Representatives of this Article 5 in any material respect, and the Corporation has been, been and continues to be, be in compliance with its obligations under Sections 16, 17 and 18this Article 5 in all material respects;
(iiib) such Acquisition Proposal is in writing and Purchaser the Corporation has been provided the Parent with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of detailing the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under (the Superior Proposal (the “Superior Proposal Notice”);
(vc) at least five the Corporation has provided the Parent with an unredacted copy of the proposed definitive agreement for the Superior Proposal and all schedules and exhibits thereto, together with any financing documents supplied to the Corporation in connection therewith;
(d) four (4) Business Days (the “Matching Period”) shall have elapsed from the date that is the later of the date on which Purchaser the Parent received the Superior Proposal Notice and the date on which Purchaser the Parent received a copy all of the letter materials set forth in Section 5.4(1)(c) above (it being understood that the Corporation shall promptly, and in any event within twenty four (24) hours, inform the Parent of intent any amendment to the financial or agreement relating to other material terms of such Superior ProposalProposal during such period);
(vie) if Purchaser has offered after the Matching Period and subject to amend this Agreement and the Arrangement pursuant to Corporation’s compliance with Section 18(b5.4(2), the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (Proposal, if applicable, compared to the terms of the Arrangement as proposed to be amended revised by Purchaser the Parent under Section 18(b5.4(2));
(f) after the Matching Period, the Board has determined, in good faith, after consultation with its outside legal counsel, that failure of the Board to make a Change in Recommendation or to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viig) Vitran has terminated prior to or concurrently with entering into a definitive agreement with respect to such Superior Proposal, the Corporation validly terminates this Agreement pursuant to Section 20(a)(iii)27.2(3)(b) and paid any applicable pays the Corporation Termination Fee in full pursuant to Section 19(b)7.3.
(b2) During the Matching Period, or such longer period as the Corporation may approve in writing for such purpose: (ia) Purchaser will the Corporation shall negotiate (and direct its Representatives to negotiate) in good faith with the Parent and its Representatives (to the extent the Parent desires to negotiate); and (b) the Parent shall have the opportunity (right, but not the obligation) , to offer propose revisions to amend the Arrangement and terms of this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, and the Arrangement; and (iic) the directors of Vitran Board shall review any offer made by Purchaser such proposed revisions to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine determine, in consultation with its financial and outside legal advisors, whether such offer wouldrevisions, upon acceptanceif given effect, result in would cause the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments giving rise to the terms of this Agreement and the Arrangement as would enable Purchaser Matching Period to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive modification to any Acquisition Proposal that results in an increase into, or a modification of, the amount or form of consideration (or value of such consideration) to be received by the Vitran Shareholders or other amendment to the material terms or conditions thereof shall constitute a new Acquisition Proposal for purposes of the requirements under Section 5.4, and Purchaser the Parent shall not have be afforded a new two (2) Business Day Matching Period from the right to further amend later of the Arrangement date on which the Parent received the Superior Proposal Notice and the date on which the Parent received all of the materials set forth in respect of a third such amendment or modification to any Acquisition ProposalSection 5.4(1)(c) above.
(d4) Upon the written request of the Parent, the Board shall promptly reaffirm the Board Recommendation by press release (but, on no more than two (2) occasions) after any Acquisition Proposal which is not determined by the Board to be a Superior Proposal is publicly announced or the Board determines that a proposed revision to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than ten (10) Business Days following the formal announcement of such Acquisition Proposal, including a customary “stop-look-and-listen” or similar communication, shall not be considered to be in violation of this Section 5.4(4) provided the Board has re-affirmed the Board Recommendation before the end of such ten (10) Business Day period). The Corporation shall provide the Parent and its outside legal advisors with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Parent and its counsel.
(5) If Vitran the Corporation provides a Superior Proposal Notice to Purchaser the Parent after a date that is less than seven five (5) Business Days before the Vitran Meeting, Vitran the Corporation may, and shall either proceed with if directed by the Parent, postpone or shall postpone adjourn the Vitran Meeting to a date that is not more than seven ten (10) Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaserbut in any event to a date that is not less than three (3) Business Days prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement (Fusion Pharmaceuticals Inc.)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board may make a Change in Recommendation and enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
(vd) the Company or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement with respect to the Superior Proposal (including any financing commitments or other documents in possession of the Company and its Representatives containing material terms and conditions of such Superior Proposal);
(e) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the letter proposed definitive agreement with respect to the Superior Proposal (including any financing commitments or other documents in possession of intent or agreement relating to the Company and its Representatives containing material terms and conditions of such Superior Proposal) from the Company;
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board has determined in good faith (i) have determined in good faith, after consultation with Vitran’s outside its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of this Agreement and the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) after consultation with its outside legal counsel, the failure for the Board to take such action with respect to such Superior Proposal would be inconsistent with its fiduciary duties to the Company; and
(viih) Vitran has terminated the terms of any definitive agreement entered into in connection with such Superior Proposal (i) do not require the Company or any other Person to seek to interfere with the attempted successful completion of the Arrangement or any alternative transaction pursued by the Purchaser pursuant to the terms of the Voting and Support Agreement with the Significant Shareholder (including requiring the Company to delay, adjourn, postpone or cancel the Company Meeting, unless as specifically permitted under this Agreement), (ii) do not provide for the payment of any break, termination or other fees or expenses, confer any rights or options to acquire assets or securities of the Company or any of its Subsidiaries to any Person in the event that the Company or any of its Subsidiaries completes the Arrangement or any alternative transaction with the Purchaser prior to the termination of this Agreement or pursuant to Section 20(a)(iii)2the terms of the Voting and Support Agreement with the Significant Shareholder, and (iii) terminates automatically in accordance with its terms, and paid is of no further force or effect, without any applicable Termination Fee further liability or obligation of the Company or of any of its Subsidiaries, upon the approval of the Arrangement Resolution by the Shareholders at the Company Meeting or the completion of any alternative transaction pursued by the Purchaser pursuant to Section 19(b)the terms of the Voting and Support Agreement with the Significant Shareholder.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review in good faith any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five Business Day Matching Period from the right to further amend later of the Arrangement in respect date on which the Purchaser received the Superior Proposal Notice and a copy of a third such amendment or modification to any Acquisition Proposalthe proposed definitive agreement for the new Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as required by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven 10 Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone or adjourn the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven 15 Business Days after the scheduled date of the Vitran Company Meeting, as directed by Purchaserbut in any event the Company Meeting shall not be postponed or adjourned to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(e6) Vitran Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Agreement shall: (i) prevent the Board from complying with Section 2.17 of National 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 an Acquisition Proposal that is not a Superior Proposal; or (ii) prohibit the Company or the Board from calling and/or holding a meeting requisitioned by the Shareholders in accordance with the CBCA (provided the Board shall use its reasonable best efforts to call and hold any such meeting after the Company Meeting unless ordered otherwise by any Governmental Entity).
(8) Without limiting the generality of this Article 5, the Company shall advise the Vitran its Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 this Article 5 and any violation of the restrictions set forth out in these sections this Article 5 by Vitranthe Company, the Vitran its Subsidiaries or the their respective Representatives is shall be deemed to be a breach of these sections this Article 5 by Vitranthe Company.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If a Party receives an Acquisition Proposal that constitutes a Superior Proposal (the “Receiving Party”) prior to, in the case of EHT being the Receiving Party, the approval of the EHT Arrangement Resolution by the EHT Shareholders, and in the case of SKYE being the Receiving Party, the approval of the SKYE Resolution by the SKYE Shareholders, the Receiving Party may, subject to compliance with Section 7.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the person or persons making such Acquisition Superior Proposal constitutes a was not restricted from making such Superior ProposalProposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purposes or similar restriction with the Receiving Party or its Subsidiaries;
(iib) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Receiving Party has delivered to the Purchaser other Party a written notice of the determination of the directors of Vitran Receiving Party’s special committee that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Receiving Party’s special committee of directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or resolve that the Receiving Party enter into a such definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(vc) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to a Receiving Party in connection therewith;
(d) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser the other Party received the Superior Proposal Notice and the date on which Purchaser such other Party received a copy all of the letter of intent or agreement relating to such Superior Proposal;materials set forth in Section 5.4(1)(c); 328972.00001/116443569.20
(vie) if Purchaser during any Matching Period, such other Party has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(f) after the Matching Period, the directors of Vitran (i) have Receiving Party’s special committee has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser the other Party under Section 18(b5.4(2))) and that the failure by the special committee to take such action would be inconsistent with its fiduciary duties; and
(viig) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Receiving Party terminates this Agreement pursuant to Section 20(a)(iii)2) 7.2, and paid any applicable pays the SKYE Termination Fee Amount or the EHT Termination Amount, as applicable, pursuant to Section 19(b)7.3.
(b2) During the Matching Period: (i) Purchaser will have , or such longer period as the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement Receiving Party may approve in order writing for such Acquisition Proposal to cease to be a Superior Proposal, (ii) purpose the directors of Vitran Receiving Party’s special committee shall review any offer made by Purchaser the other Party under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Receiving Party’s special committee determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Receiving Party shall promptly so advise Purchaser the other Party and the Parties shall amend this Agreement to reflect such offer made by Purchaserthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and Purchaser the other Party shall not have be afforded a new Matching Period (provided that any such subsequent Matching Period will only be three Business Days) from the right later of the date on which such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(c) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Receiving Party.
(d4) The Receiving Party’s board of directors shall promptly reaffirm the EHT Board Recommendation or the SKYE Board Recommendation, as the case may be, by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement as contemplated Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Receiving Party shall provide the other Party and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the other Party and its counsel.
(5) If Vitran the Receiving Party provides a Superior Proposal Notice to Purchaser after the other Party on a date that is less than seven ten Business Days before the Vitran EHT Meeting or the SKYE Meeting, Vitran shall either as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or shall adjourn or postpone such EHT Meeting or SKYE Meeting, as the Vitran Meeting case may be, in accordance with the terms of this Agreement to a date specified by the other Party that is not more than seven ten Business Days after the scheduled date of the Vitran EHT Meeting or the SKYE Meeting, as directed by Purchaser.
(e) Vitran the case may be, provided that in no event shall advise such adjourned or postponed meeting be held on a date that is less than five Business Days prior to the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.Outside Date. 328972.00001/116443569.20
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board may, subject to compliance with Section 7.4, enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such definitive agreement, together with a definitive agreement with respect to such Superior Proposal, which written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “"Superior Proposal Notice”");
(vd) the Company has provided the Purchaser a copy of the definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating materials set out in Section 5.3(1)(d) from the Company;
(f) during any Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.3(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(vig) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.3(2), after the directors of Vitran (i) have Matching Period, the Board has determined in good faith, after consultation with Vitran’s the Company's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.3(2));
(h) the Board has determined in good faith, after consultation with the Company's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viii) Vitran has terminated prior to entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b)7.4.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.3(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.3, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set out in Section 5.3(1)(d) in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.3(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven ten (10) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven fifteen (15) Business Days after the scheduled date of the Vitran Company Meeting, as directed by Purchaserprovided that in no event shall such adjourned or postponed meeting be held on a date that is less than five (5) Business Days prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If True Gold receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the True Gold Securityholders, the True Gold Board may, subject to compliance with Section 8.3, enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill or similar restriction;
(ii) Vitran True Gold has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 7;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran True Gold has delivered to the Purchaser Endeavour a written notice of the determination of the directors of Vitran True Gold Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran True Gold Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such definitive agreement, together with a definitive agreement with respect to such Superior Proposal, which written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveTrue Gold Board, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “"Superior Proposal Notice”");
(iv) True Gold has provided Endeavour with a copy of the proposed definitive agreement for the Superior Proposal, together with a summary of the factors used by the True Gold Board to conclude it is a Superior Proposal, and in the case of a proposal that includes non- cash consideration, the value or range of values attributed by the True Gold Board, in good faith, to such non-cash consideration, after consultation with its financial advisers;
(v) at least five Business Days six (6) calendar days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Purchaser Endeavour received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or proposed definitive agreement relating for the Superior Proposal from True Gold;
(vi) during any Matching Period, Endeavour has had the opportunity (but not the obligation), in accordance with Section 7.3(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(vivii) if Purchaser Endeavour has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b7.3(b), the directors of Vitran (i) have True Gold Board has determined in good faith, after consultation with Vitran’s True Gold's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser Endeavour under Section 18(b7.3(b));
(viii) the True Gold Board has determined in good faith, after consultation with True Gold's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to properly discharge its fiduciary duties; and
(viiix) Vitran has terminated prior to entering into such definitive agreement True Gold terminates this Agreement pursuant to Section 20(a)(iii)2Subsection 8.2(a)(iv)(B) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.3.
(b) During the Matching Period, or such longer period as True Gold may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran True Gold Board shall review any offer made by Purchaser Endeavour under Section 7.3(b) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran True Gold shall negotiate in good faith with Purchaser Endeavour to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser Endeavour to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine True Gold Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran True Gold shall promptly so advise Purchaser Endeavour and the Parties True Gold and Endeavour shall amend this Agreement to reflect such offer made by PurchaserEndeavour, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase inshall constitute a new Acquisition Proposal for the purposes of this Section 7.3, or modification of, and Endeavour shall be afforded a new six (6) calendar day Matching Period from the consideration (or value later of such consideration) to be the date on which Endeavour received by the Vitran Shareholders or other material terms or conditions thereof Superior Proposal Notice and Purchaser shall not have a copy of the right to further amend proposed definitive agreement for the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from True Gold.
(d) If Vitran True Gold provides a Superior Proposal Notice to Purchaser Endeavour after a date that is less than seven 10 Business Days before the Vitran date of the True Gold Meeting, Vitran True Gold shall either proceed with or shall postpone the Vitran Meeting True Gold Meeting, as directed by Endeavour acting reasonably, to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran True Gold Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Company Board may, or may cause the Company to, subject to compliance with Section 7.3, terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(i) i. the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, non-solicitation, or similar agreement, restriction, or covenant with the Company or any of the Company Subsidiaries;
(ii) Vitran . the Company has been, and continues to be, in compliance (A) with its obligations under Sections 16Section 5.1 in all respects, 17 (B) with its obligations under ARTICLE V (other than Section 5.1) in all material respects and 18(C) its obligations under Section 2.3 and Section 2.4;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of . the letter of intent Company or agreement relating to such Superior Proposal;
(iv) Vitran has its Representatives have delivered to the Purchaser Parent a written notice of the determination of the directors of Vitran Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
iv. the Company or its Representatives have provided to Parent a copy of the proposed definitive agreements for the Superior Proposal (vwhich shall include all schedules, appendices, exhibits and other attachments related thereto including copies of any financing commitments related thereto) and all ancillary documentation and supporting materials (including any financing documents subject to customary confidentiality provisions) and any other material documents or material correspondences (as well as any subsequent amendment or modification with respect to any of the foregoing) provided to or by the Company, and Company Subsidiary or their respective Affiliates and Representatives in connection therewith;
v. at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser Pxxxxx received the Superior Proposal Notice and the date on which Purchaser Parent received a copy of all the letter materials referred to in iv;
vi. during any Matching Period, the Company shall, if requested by Pxxxxx, negotiate in good faith with Pxxxxx and Pxxxxx’s Representatives, regarding any revision to the terms of intent or agreement relating the Arrangement and other Transactions proposed by Parent in order for such Acquisition Proposal to such cease to be a Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and vii. after the Arrangement pursuant to Section 18(b)Matching Period, the directors of Vitran (i) have Company Board has determined in good faith, faith (A) after consultation with Vitran’s its financial advisor(s) and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser Parent under Section 18(b5.4(b)); and) and (B) after consultation with its outside legal counsel and financial advisors, that the failure to take the relevant action would be inconsistent with its fiduciary duties under applicable Law;
(vii) Vitran has terminated viii. prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)2) 7.1, and paid any applicable pays the Termination Fee pursuant to Section 19(b)7.3; and
ix. the making of the Acquisition Proposal constituting a Superior Proposal did not result, directly or indirectly, from any breach of this ARTICLE V or any other provision of this Agreement or the Confidentiality Agreement.
(b) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran Company Board shall review in good faith any offer made by Purchaser Parent under Section 5.4(a)vi to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiiii) Vitran the Company shall, and shall cause its Representatives to, negotiate in good faith with Purchaser Pxxxxx and Pxxxxx’s Representatives to make such amendments to the terms of this Agreement and the Arrangement as would enable Parent and Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly (and in any event within twenty-four (24) hours of such determination) so advise Purchaser Parent and the Parties Company and Parent shall amend this Agreement to reflect such offer made by PurchaserParent, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and Purchaser Parent shall not have be afforded a new full five (5) Business Day Matching Period from the right later of the date on which Parent received the Superior Proposal Notice for the new Superior Proposal and the date on which Parent received all of the materials referred to further amend the Arrangement in Section 5.4(a)iv with respect of a third to such amendment or modification to any Acquisition new Superior Proposal.
(d) The Company Board shall promptly (and in any event within twenty-four (24) hours) reaffirm the Company Board Recommendation without qualification by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or publicly disclosed or the Company Board determines that a proposed amendment to the terms of this Agreement or the Arrangement as contemplated under Section 5.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide Parent and its Representatives with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by Parent and its outside legal counsel.
(e) If Vitran the Company provides a Superior Proposal Notice to Purchaser after Parent on a date that is less than seven ten (10) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone the Vitran Meeting Company Meeting, as directed by Pxxxxx acting reasonably, to a date determined by Parent that is not more than seven ten (10) Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserCompany Meeting but in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Time from occurring on or prior to the End Date.
(ef) Vitran Nothing contained in this Agreement shall prohibit the Company Board from complying with Section 2.17 of National Instrument 62- 104 - Take-Over Bids and Issuer Bids and similar provisions under applicable Securities Laws relating to the provision of a directors’ circular in respect of an Acquisition Proposal; or prohibit the Company or the Company Board from calling and/or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the CBCA or taking any other action to the extent expressly ordered or otherwise mandated by a Governmental Body; provided, however, in each case that, notwithstanding that the Company Board shall be permitted to make such disclosure, the Company Board shall not be permitted to make a Change in Recommendation solely as a result of such disclosure. Any public disclosure made by or on behalf of the Company relating to any Acquisition Proposal shall state that the Company Board Recommendation continues to be in effect, unless, prior to the time of such public disclosure, this Agreement has been terminated in compliance with ARTICLE V.
(g) Without limiting the generality of the foregoing, the Company shall advise the Vitran its Subsidiaries and its and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 this ARTICLE V and any violation of the restrictions set forth in these sections this ARTICLE V by Vitranthe Company, the Vitran its Subsidiaries or the respective its or their Representatives is will be deemed to be a breach of these sections this ARTICLE V by Vitranthe Company for which the Company will be responsible.
Appears in 1 contract
Right to Match. (a) Vitran If the Company receives an Acquisition Proposal from any Person or group of Persons, other than the Investor or any of its Affiliates (a “Potential Acquiror”), during the Restricted Period, pursuant to which the Company has negotiated a form of definitive agreement that the Board has, in good faith, determined that it would be prepared to approve (the “Triggering Proposal”), the Company may take any action that is prohibited by Sections 16(a)(iii) or (iv) in enter into a definitive agreement with respect of any to such Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser Investor a written notice of the determination of the directors of Vitran Board that such Acquisition the Triggering Proposal constitutes a Superior an Acquisition Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Triggering Proposal (the an “Superior Acquisition Proposal Notice”);
(vii) the Company has provided the Investor with a copy of the proposed definitive agreement for the Triggering Proposal and all supporting materials supplied to the Company in connection therewith;
(iii) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser the Investor received the Superior Acquisition Proposal Notice and the date on which Purchaser the Investor received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 7.1(a)(ii) (the “Matching Period”);
(viiv) if Purchaser during the Matching Period, the Investor has offered to amend this Agreement and had an opportunity (but not the Arrangement pursuant to obligation) in accordance with Section 18(b7.1(b), to make an Acquisition Proposal to the directors of Vitran Company that is intended to be a Matching Proposal (ithe “Right to Match”);
(v) have after the Matching Period, the Board has determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisorscounsel, that such it has not received an Acquisition Proposal continues to constitute from the Investor that constitutes a Superior Matching Proposal (compared and the Company has provided written notice of such determination to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b))Investor; and
(viivi) Vitran if the Investor receives the notice described in Section 7.1(a)(v) despite having made an Acquisition Proposal that was intended to be a Matching Proposal during the Matching Period, (A) the Investor fails to provide to the Company within 24 hours following receipt of such notice (the “Cure Period”) with an Acquisition Proposal that is intended to be a Matching Proposal, or (B) the Board has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid determined in good faith, after consultation with outside counsel, that any applicable Termination Fee pursuant to Section 19(b)Acquisition Proposal provided during the Cure Period does not constitute a Matching Proposal.
(b) During the Matching Period or Cure Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran Board shall review any offer Acquisition Proposal made by Purchaser to amend the terms Investor or any of this Agreement and the Arrangement its Affiliates under Section 7.1(a)(iv), in good faith after consultation with Vitran’s outside legal and financial advisorscounsel, in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting proposal is a Superior Proposal ceasing to be a Superior Matching Proposal; and (iiiii) Vitran if the Board determines that such Acquisition Proposal is a Matching Proposal, the Company shall negotiate in good faith with Purchaser the Investor to make enter into a definitive agreement in respect of such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Matching Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Triggering Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 7.1 and Purchaser the Investor shall not have be afforded a new Matching Period in connection therewith, provided that, notwithstanding Section 7.1(a)(iii) above, the right to further amend the Arrangement in respect duration of a third such amendment or modification to any Acquisition ProposalMatching Period shall be three Business Days rather than five Business Days.
(d) If Vitran provides the Investor does not deliver a Superior Matching Proposal Notice to Purchaser after the Company within the Matching Period or Cure Period, then the Company shall be entitled for a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days period of ten days after the scheduled date expiry of the Vitran Meeting, as directed by Purchaserapplicable Matching Period and Cure Period to enter into a definitive agreement in respect of the Triggering Proposal.
(e) Vitran shall advise Upon the Vitran Subsidiaries and their respective Representatives expiry of the prohibitions set out in Sections 16Restricted Period, 17 the Right to Match granted to the Investor pursuant to this Section 7.1 and 18 and any violation the obligations of the restrictions Company in connection therewith shall terminate and be of no further force or effect.
(f) In the event that none of the Investor or its Affiliates submits a Matching Proposal to the Company pursuant to Section 7.1(a)(iv) or Section 7.1(a)(vi), then, for so long as the definitive agreement resulting from the Triggering Proposal remains in effect and the transaction represented thereby is supported by the Board, the Investor shall, and shall cause its Affiliated Transferees to (i) vote any Shares and New Preferred Shares beneficially owned, or over which control or direction is exercised, by the Investor or its Affiliated Transferees in favour of or abstain from voting on any resolution to approve the transaction, or any resolution required to facilitate the transaction, resulting from, and on terms materially consistent with (including that there be no decrease in the amount of any consideration payable for the Shares and New Preferred Shares), the Triggering Proposal; and (ii) tender any Shares and New Preferred Shares, as applicable, beneficially owned, or over which control or direction is exercised, by the Investor or its Affiliated Transferees, to any take-over bid, tender offer, exchange offer or other similar offer resulting from, and on terms materially consistent with (including that there be no decrease in the amount of any consideration payable for the Shares and New Preferred Shares), the Triggering Proposal.
(g) Upon receipt of an Acquisition Proposal, the Company shall promptly notify the Potential Acquiror of the rights and obligations of the Company and the Investor set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitranthis Section 7.1.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approval, the Board may, subject to compliance with Article 7, authorize the Company to enter into an Alternate Agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and authorize the Company to accept, approve, endorse, recommend or enter into a definitive agreement such Alternate Agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
(vd) the Company has provided the Purchaser a copy of the proposed Alternate Agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five 10 Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(d);
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board (i) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that it is necessary for the Board to authorize the Company to enter into an Alternate Agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties; and
(viih) Vitran has terminated this prior to or concurrent with entering into of such an Alternate Agreement, the Company terminates the Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays to Purchaser the Termination Fee pursuant to Section 19(b)Fee.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall, and shall cause its financial and legal advisors to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a) Vitran may take any action If the Company receives an Acquisition Proposal that constitutes a Superior Proposal after the date hereof and prior to the approval of the Arrangement Resolution by the Company Shareholders, the Board may: (A) authorize the Company to enter into a definitive agreement with respect to such Acquisition Proposal and (B) withdraw, modify, qualify or change in a manner adverse to the Purchaser its approval or recommendation of the Arrangement and recommend or approve an Acquisition Proposal that is prohibited by Sections 16(a)(iii) or (iv) in respect of any Acquisition Proposal a Superior Proposal, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill, confidentiality or similar restriction;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the good faith determination of the directors of Vitran Board, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such definitive agreement, together with a copy of the definitive agreement with respect to such for the Superior ProposalProposal and disclosure of the value, which notice will include the director’s determination regarding the value or range of value expressed in financial terms dollars, that the directors of Vitran haveBoard has, in consultation with Vitran’s its financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (collectively, the “Superior Proposal Notice”);
(viii) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or proposed definitive agreement relating for the Superior Proposal from the Company;
(iv) during any Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(viv) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.4(b), the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitranthe Company’s financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(b));
(vi) the Company did not breach any provision of Section 5.1 in connection with the preparation or making of such Superior Proposal and the Company has been and continues to be in compliance with Article 5; and
(vii) Vitran has terminated prior to, or concurrently with, entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(a)(iii)(B) and paid any applicable pays the Company Termination Fee Amount to the Purchaser pursuant to Section 19(b)7.4.
(b) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(a)(v) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine determine, in consultation with its financial and outside legal advisors, whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiiii) Vitran if it would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise Purchaser the Purchaser, and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. Subject to the Company’s disclosure obligations under applicable Securities Laws: (A) the fact of the making of any such proposed amendments; and (B) each of the terms of any such proposed amendments, shall be kept strictly confidential and shall not be disclosed to any person (including without limitation, the person having made the Superior Proposal), other than the Company’s Representatives, without the Purchaser’s prior written consent.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or a modification ofto, the consideration (or value of such consideration) to be received by the Vitran Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded an additional five-Business Day Matching Period from the right to further amend date on which the Arrangement in respect of a third such amendment or modification to any Acquisition ProposalPurchaser received the Superior Proposal Notice.
(d) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(b) would result in an Acquisition Proposal constituting a Superior Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its legal counsel.
(e) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven 10 Business Days before the Vitran Company Meeting, Vitran the Company may, and shall either proceed with or shall at the request of Purchaser, postpone the Vitran Company Meeting to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran MeetingCompany Meeting (and, as directed by Purchaserin any event, prior to the Outside Date).
(ef) Vitran shall advise Neither the Vitran Company nor any of its Subsidiaries will become a party to any Contract with any person subsequent to the date hereof that limits or prohibits the Company and/or any of its Subsidiaries from providing:
(i) or making available to the Purchaser and their respective its affiliates and Representatives of any information provided or made available to such person or its officers, directors, employees, consultants, advisors, agents or other Representatives (including solicitors, accountants, investment bankers and financial advisors) pursuant to any confidentiality agreement described in this Section 5.1; or
(ii) the prohibitions set out in Sections 16, 17 Purchaser and 18 its affiliates and Representatives with any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed other information required to be a breach of these sections given to it by Vitranthe Company under this Article 5.
Appears in 1 contract
Right to Match. (a) Vitran may take Notwithstanding anything to the contrary in this Agreement, at any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any time prior to obtaining the Absolute Shareholder Approval, if Absolute receives an Acquisition Proposal that constitutes a Superior Proposal, the Absolute Board may, or may cause Absolute to, terminate this Agreement in accordance with Article 9 to enter into a definitive acquisition agreement with respect to such Superior Proposal, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill, nondisclosure, non-solicitation or similar agreement, restriction or covenant with Absolute or any of its Subsidiaries;
(ii) the Absolute Board acting in good faith and after consultation with its outside legal counsel and financial advisors, determines that the Acquisition Proposal constitutes a Superior Proposal;
(iiiii) Vitran Absolute has been, and continues to be, in compliance in all material respects with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior ProposalArticle 7;
(iv) Vitran Absolute has delivered to provided the Purchaser with a written notice of in writing that the determination of the directors of Vitran Absolute Board has determined that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Absolute Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive acquisition agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(v) Absolute has provided to the Purchaser the terms of such Superior Proposal, including the financial terms of such Superior Proposal and a copy of the proposed definitive acquisition agreement relating to such Superior Proposal (including the value and financial terms that the Absolute Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal), together with all related agreements (including any financing commitments or other documents containing any material terms or conditions of such Superior Proposal);
(vi) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of all the letter of intent or agreement relating materials referred to such Superior Proposalin Section 7.4(a)(v);
(vivii) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 7.4(b), to offer to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and
(vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b).
(b) During the Matching Period: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(viii) after the Matching Period, the Absolute Board shall have determined, in good faith, after consultation with its outside legal counsel and financial advisors, that (A) such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the proposed amendment to the terms of the Arrangement by the Purchaser under Section 7.4(b)); and (B) the failure by the Absolute Board to authorize Absolute to enter into a definitive acquisition agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; and
(ix) Absolute concurrently terminates this Agreement pursuant to Section 9.2(a)(iv)(B) and Absolute has previously, or concurrently will have, paid to the Purchaser the Absolute Termination Fee pursuant to Section 9.3.
(b) During the Matching Period, or such or such longer period as Absolute and the Purchaser may agree for such purpose:
(i) the Purchaser shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement and the Arrangement;
(ii) Absolute shall co-operate with the directors Purchaser with respect thereto, including by (A) negotiating in good faith with the Purchaser to enable the Purchaser to make such adjustments to the terms and conditions of Vitran shall review this Agreement and the Arrangement that would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the terms of this Agreement and the Arrangement proposed by the Purchaser, and (B) reviewing any offer made by the Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting not being a Superior Proposal ceasing compared to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments the proposed amendment to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with proposed by the Transactions contemplated by this Agreement on such amended terms. If Purchaser;
(iii) if the directors of Vitran determine Absolute Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran Absolute shall promptly so advise the Purchaser and Absolute and the Parties Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.; and
(civ) The right Absolute acknowledges and agrees that each successive modification of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 7.4 and the Purchaser shall not have be afforded a new full five (5) Business Day Matching Period from the right later of the date on which the Purchaser received the Superior Proposal Notice for the new Superior Proposal and the date on which the Purchaser received all of the materials referred to further amend in Section 7.4(a)(v) with respect to such new Superior Proposal.
(c) The Absolute Board shall promptly reaffirm the Arrangement in respect of a third such amendment or modification to Absolute Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or publicly disclosed or the Absolute Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 7.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. Absolute shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall consider in good faith any amendments requested by the Purchaser and its outside legal counsel.
(d) If Vitran Absolute provides the Purchaser with a Superior Proposal Notice to Purchaser after on a date that is less than seven ten Business Days before prior to the Vitran Absolute Meeting, Vitran shall either proceed with or shall postpone Absolute shall, if requested by the Vitran Purchaser, adjourn the Absolute Meeting to a date that is not more than seven ten Business Days after the scheduled date of such notice, provided, however, that the Vitran Meeting, as directed by PurchaserAbsolute Meeting shall not be adjourned or postponed to a date later than the seventh (7) Business Day prior to the Outside Date.
(e) Vitran Nothing contained in this Agreement shall advise (i) prohibit the Vitran Subsidiaries Absolute Board from complying with Section 2.17 of National Instrument 62-104 - Takeover Bids and their respective Representatives Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors’ circular in respect of an Acquisition Proposal; or (ii) prohibit Absolute or the prohibitions set out Absolute Board from calling and/or holding a meeting of Shareholders requisitioned by Shareholders in Sections 16accordance with the BCBCA or taking any other action to the extent ordered or otherwise mandated by a Governmental Authority; provided, 17 and 18 and any violation of however, in each case that, notwithstanding that the restrictions set forth in these sections by VitranAbsolute Board shall be permitted to make such disclosure, the Vitran Subsidiaries or the respective Representatives is deemed Absolute Board shall not be permitted to be a breach of these sections by Vitranmake an Absolute Change in Recommendation.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Corporation receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Board may, or may cause the Corporation to, based upon, inter alia, the recommendation of the Special Committee, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal or make a Change in Recommendation, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalin that context pursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction with the Corporation or any of its Subsidiaries;
(iib) Vitran the Corporation has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Corporation has delivered to the Purchaser Parties a written notice of the determination of the directors Board (based upon, inter alia, the recommendation of Vitran the Special Committee) that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and or authorize the Corporation to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under Proposal (the Superior Proposal (the “Superior Proposal Notice”);
(vd) the Corporation has provided the Purchaser Parties a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to the Corporation in connection therewith;
(e) at least five (5) full Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser Parties received the Superior Proposal Notice and the date on which the Purchaser Parties received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(d);
(vif) if during any Matching Period, the Purchaser has offered Parties have had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors Board (based upon, inter alia, the recommendation of Vitran the Special Committee) has:
(i) have determined in good faith, after consultation with Vitranthe Corporation’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser Parties under Section 18(b5.4(2)); and
(viiii) Vitran has terminated determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to recommend that the Corporation makes a Change in Recommendation or authorizes the Corporation to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(h) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement, the Corporation terminates this Agreement pursuant to Section 20(a)(iii)27.2(3)(b) and paid any applicable pays the Corporation Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Corporation may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser Parties under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Corporation shall negotiate in good faith with the Purchaser Parties to make such amendments to the terms of this Agreement and or the Plan of Arrangement as would enable the Purchaser Parties to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors Board determines (based upon, inter alia, the recommendation of Vitran determine the Special Committee) that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Corporation shall promptly so advise the Purchaser Parties and the Corporation and the Purchaser Parties shall amend this Agreement to reflect such offer made by Purchaserthe Purchaser Parties, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser Parties shall not have be afforded a new full five (5) Business Day Matching Period from the right later of the date on which the Purchaser Parties received the Superior Proposal Notice and the date on which the Purchaser Parties received all of the materials set forth in Section 5.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Corporation.
(d4) The Board shall forthwith, and in any event within three (3) Business Days from the Purchaser Parties’ reasonable request to do so, promptly reaffirm the Board Recommendation (based upon, inter alia, the recommendation of the Special Committee) by press release after any Acquisition Proposal which the Board has determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Corporation shall provide the Purchaser Parties and their outside legal counsel with a reasonable opportunity to review and comment on the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser Parties and their counsel.
(5) If Vitran the Corporation provides a Superior Proposal Notice to the Purchaser after Parties on a date that is less than seven ten (10) Business Days before the Vitran Meeting, Vitran the Corporation shall either proceed with or be entitled to and shall upon request from the Purchaser Parties, acting reasonably, postpone the Vitran Meeting to a date that is not more than seven fifteen (15) Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaserbut in any event to a date that is not later than five (5) Business Days prior to the Outside Date.
(e6) Vitran Nothing contained in this Agreement shall advise prohibit the Vitran Subsidiaries Board (or the Special Committee) from:
(a) making any disclosure or fulfilling its legal obligations to Shareholders, if the Board (or the Special Committee), after consultation with legal and financial advisors, has determined in good faith that such disclosure or action is necessary for the Board to act in a manner consistent with its fiduciary duties or such action or disclosure is otherwise required by Law (including by responding to an Acquisition Proposal that it determines is not a Superior Proposal through a directors' circular or otherwise as required by Law);
(b) calling and/or holding a meeting of Shareholders requisitioned by the QBCA or the Shareholders in accordance with the QBCA and the Corporation’s Constating Documents; or
(c) taking any other action with respect to an Acquisition Proposal to the extent ordered or otherwise mandated by a court of competent jurisdiction in accordance with Law, provided however that the Corporation shall provide the Purchaser Parties and their respective Representatives outside legal counsel with a reasonable opportunity to review and comment on the form and content of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed disclosure to be a breach of these sections made pursuant to this Section 5.4(6), and shall give reasonable consideration to comments made by Vitranthe Purchaser Parties and their outside legal counsel.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Board may, or may cause the Company to, (based upon, amongst other things, the recommendation of the Special Committee), subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill or similar agreement, restriction or covenant, and such Acquisition Proposal constitutes did not result from a Superior Proposalbreach from Article 5 in any material respect;
(iib) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors Board (based upon, amongst other things, the recommendation of Vitran the Special Committee) that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and authorize the Company to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include including the director’s determination regarding the value or range of value in financial terms that the directors of Vitran haveBoard has, in consultation with Vitran’s its financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (the “"Superior Proposal Notice”");
(vc) the Company has provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal, together with all related documents, including shareholder voting and support agreements, financing commitment papers and any rollover, reinvestment or similar agreements;
(d) at least five (5) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the letter of intent or proposed definitive agreement relating to such and related documents for the Superior Proposal;
(vie) if during any Matching Period, (i) the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal, and (ii) the Company has negotiated in good faith with the Purchaser (to the extent the Purchaser desires to negotiate) regarding any amendments proposed by the Purchaser to this Agreement and the Arrangement;
(f) after the Matching Period, the directors of Vitran (i) have Board has determined in good faithfaith (based upon, amongst other things, the recommendation of the Special Committee), after consultation with Vitran’s outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2)); and
(viig) Vitran has terminated prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) [Superior Proposal] and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in its sole discretion in writing for such purpose: (ia) the Purchaser will shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior ProposalProposal and the Board (and Special Committee) shall, (ii) in consultation with the directors of Vitran shall outside legal counsel and financial advisers, review any offer made by the Purchaser under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; , and (iiib) Vitran if the Acquisition Proposal would no longer constitute a Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate in good faith exclusively with the Purchaser to make such amendments to the terms of this Agreement and the Plan of Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors Board determines (based upon, inter alia, the recommendation of Vitran determine the Special Committee) that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement in respect date on which the Purchaser received the Superior Proposal Notice for the new Superior Proposal and a copy of a third such amendment or modification to any Acquisition the proposed definitive agreement for the new Superior Proposal.
(d4) The Board and the Special Committee shall promptly, and in any event within three (3) Business Days from the Purchaser's request to do so, reaffirm (subject to Section 5.1(1)(d)) the Board Recommendation and the Special Committee Recommendation, as applicable, by press release after any Acquisition Proposal which is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall give reasonable consideration to any comments provided by the Purchaser and its outside legal counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven ten (10) Business Days before the Vitran Meeting, Vitran the Company shall either proceed with or be entitled to and shall upon request from the Purchaser postpone the Vitran Meeting to a date that is not more than seven fifteen (15) Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaserbut in any event to a date that is not less than ten (10) Business Days prior to the Outside Date.
(e6) Vitran Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement shall advise prohibit the Vitran Subsidiaries Company or the Board from (a) complying with Rules 14d-9 and their respective Representatives 14e-2(a) under the Exchange Act or similar Laws under other Securities Law, including a "stop, look and listen" communication (or any substantially similar communication) by the Board or the Special Committee, as applicable, to Shareholders pursuant to Rule 14d-9(f) under the Exchange Act; (b) complying with Item 1012(a) of Regulation M-A under the Exchange Act; (c) complying with the Company's disclosure obligations under Securities Law; or (d) making a Change in Recommendation or from making any disclosure to any securityholders of the prohibitions set out Company prior to the Effective Time, including for greater certainty disclosure of a Change in Sections 16Recommendation, 17 and 18 and any violation if, in the good faith judgment of the restrictions set forth Board, after consultation with outside legal counsel and upon the recommendation of the Special Committee, failing to take such action or make such disclosure would reasonably be expected to be inconsistent with the Board's exercise of its fiduciary duties or such action or disclosure is otherwise required by Law (including by responding to an Acquisition Proposal under a directors' circular or otherwise as required by Law); provided that, for greater certainty, in these sections the event of a Change in Recommendation and a termination by Vitranthe Purchaser of this Agreement pursuant to Section 7.2(1)(d)(ii), the Vitran Subsidiaries Company shall be obligated to pay the Termination Fee as required by Section 8.2(2). The Board may not make a Change in Recommendation pursuant to the preceding sentence unless the Company gives the Purchaser at least three (3) Business Days prior written notice of its intention to make such Change in Recommendation, provided that, for greater certainty, the foregoing limitation shall not apply in respect of any actions taken under Section 5.4(1). In addition, nothing contained in this Agreement shall prohibit the Company or the respective Representatives is deemed Board from calling or holding a meeting of Shareholders requisitioned by Shareholders in accordance with the CBCA or taking any other action with respect to be an Acquisition Proposal to the extent ordered or otherwise mandated by a breach court of these sections by Vitran.competent jurisdiction in accordance with Law;
Appears in 1 contract
Samples: Arrangement Agreement (Nuvei Corp)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of prior to obtaining the intention of Required Approval, the directors of Vitran to Board may make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which if and only if:
(a) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an existing confidentiality, standstill use, business purpose or similar restriction;
(b) the 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 or the Exclusivity Agreement;
(c) the Company has delivered to the Purchaser a written notice will include of the director’s determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board enter into such definitive agreement, together with a written notice from the Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under such Acquisition Proposal (the "Superior Proposal Notice") together with all documentation related to and detailing the Superior Proposal;
(d) the Company or its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal (at the “time it delivered the Superior Proposal Notice”);
(ve) at least five (5) Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or proposed definitive agreement relating to such for the Superior ProposalProposal from the Company;
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s outside its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2));
(h) the Board has determined, in good faith, after consultation with the Company's outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(viii) Vitran has terminated such Superior Proposal does not require the Company or any other Person to seek to interfere with the attempted successful completion of the Arrangement or any alternative transaction pursued by the Purchaser pursuant to the terms of the Support and Voting Agreements (including requiring the Company to delay, adjourn, postpone or cancel the Company Meeting) or provide for the payment of any break, termination or other fees or expenses or confer any rights or options to acquire assets or securities of the Company or any of its Subsidiaries to any Person in the event that the Company or any of its Subsidiaries completes the Arrangement or any other similar transaction with the Purchaser agreed to prior to the termination of this Agreement or pursuant to Section 20(a)(iii)2) the Support and paid any applicable Termination Fee pursuant to Section 19(b)Voting Agreements.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement in respect date on which the Purchaser received the Superior Proposal Notice and a copy of a third such amendment or modification to any Acquisition Proposalthe proposed definitive agreement for the new Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven 10 Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone or adjourn the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran Company Meeting, as directed by Purchaserbut in any event to a date that is not less than five Business Days prior to the Outside Date.
(e6) Vitran Nothing contained in this Section 5.4 shall advise limit in any way the Vitran Subsidiaries and their respective Representatives obligation of the prohibitions set out Company to convene and hold the Company Meeting in Sections 16, 17 and 18 and any violation accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Agreement shall prevent the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.Board from complying with section
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has beenThe Purchasers may, and continues to bebut are not required to, in compliance with its obligations under Sections 16during the Notice Period, 17 and 18;
(iii) such Acquisition Proposal is offer in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and
(vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b).
(b) During the Matching Period: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement Transaction and, if they so do, then the Board shall review any such offer in good faith after faith, in consultation with Vitran’s its financial and outside legal and financial advisorsadvisors and, in order to determine whether such offer would, upon acceptance, result in if the Board:
6.5.1 determines that the Acquisition Proposal previously constituting a Superior Proposal ceasing would thereby cease to be a Superior Proposal; :
(i) if the Acquisition Proposal was received during the Go-Shop Period, then notwithstanding Section 6.1.2, for a period of five Business Days following the expiry of the Notice Period (the “Subsequent Notice Period”) the Go-Shop Period shall be extended with respect to the party that made such Superior Proposal (and for greater certainty, the activities otherwise prohibited by Sections 6.1.2(i) and (iiiii) Vitran shall negotiate be permitted in good faith relation to such party) provided that if during the Subsequent Notice Period such party amends such Acquisition Proposal so that such Acquisition Proposal (as amended) constitutes a Superior Proposal, the Fund will so notify the Purchasers and the provisions of this Section 6.5.1 and 6.4 shall again apply (as many times as is necessary). For greater clarity, the Closing Date, the Outside Date, and date of the Fund Meeting as set out in Section 2.6 shall each be delayed one Business Day for each Business Day that the Notice Periods and Subsequent Notice Periods extend beyond the original Go-Shop Period, and
(ii) if the Acquisition Proposal was received after the end of the Go-Shop Period, it will cause the Fund Parties to enter into an amendment to this Agreement reflecting the offer by the Purchasers to amend the terms of the Transaction, or 6.5.2 determines, following compliance with Purchaser Article 6 (including Section 6.4(vi)), that the Acquisition Proposal would nonetheless remain a Superior Proposal and therefore rejects the Purchasers’ offer to make such amendments to amend the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with Transaction, the Transactions contemplated by Fund Parties may terminate this Agreement on such amended terms. If provided however, that the directors Fund must pay the Purchasers Expenses and either the Go-Shop Termination Fee or the Termination Fee as set out in Section 10.2.1 prior to the termination of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser this Agreement and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right entering into of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement definitive agreement in respect of a third such amendment or modification to any Acquisition the Superior Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Business Acquisition Agreement (Bumble Bee Capital Corp.)
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any 5.8.1 If Imvescor receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Amalgamation Resolution by the Imvescor Shareholders, the Board (or any committee thereof) may, subject to compliance with Article 7, make a Change in Recommendation and enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure or similar restriction with Imvescor or any of its Subsidiaries;
(iib) Vitran Imvescor has been, and continues to be, in compliance with its obligations under Sections 165.5, 17 5.6, 5.7 and 185.8;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Imvescor has delivered to the Purchaser MTY a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms as well as a copy of any draft agreement in respect thereof that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the such Superior Proposal (the “Superior Proposal Notice”);
(vd) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser MTY received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior ProposalNotice;
(vie) if Purchaser during any Matching Period, MTY has offered had the opportunity (but not the obligation), in accordance with Section 5.8.2, to offer to amend this Agreement and the Arrangement pursuant Amalgamation Agreement in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal; and
(f) after the Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and
(vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b).
(b) During the Matching Period: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement Amalgamation as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease proposed to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made amended by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoingMTY under Section 5.8.2).
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match.
(a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If a Party receives an Acquisition Proposal that constitutes a Superior Proposal (the “Receiving Party”) prior to, in the case of EHT being the Receiving Party, the approval of the EHT Arrangement Resolution by the EHT Shareholders, and in the case of SKYE being the Receiving Party, the approval of the SKYE Resolution by the SKYE Shareholders, the Receiving Party may, subject to compliance with Section 7.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the person or persons making such Acquisition Superior Proposal constitutes a was not restricted from making such Superior ProposalProposal pursuant to an existing confidentiality, standstill, non-disclosure, use, business purposes or similar restriction with the Receiving Party or its Subsidiaries;
(iib) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Receiving Party has delivered to the Purchaser other Party a written notice of the determination of the directors of Vitran Receiving Party’s special committee that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Receiving Party’s special committee of directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or resolve that the Receiving Party enter into a such definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);Notice”);
(vc) the Receiving Party has provided the other Party a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials, including any financing documents supplied to a Receiving Party in connection therewith;
(d) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser the other Party received the Superior Proposal Notice and the date on which Purchaser such other Party received a copy all of the letter of intent or agreement relating to such Superior Proposal;materials set forth in Section 5.4(1)(c);
(vie) if Purchaser during any Matching Period, such other Party has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(f) after the Matching Period, the directors of Vitran (i) have Receiving Party’s special committee has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser the other Party under Section 18(b5.4(2))) and that the failure by the special committee to take such action would be inconsistent with its fiduciary duties; and
(viig) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Receiving Party terminates this Agreement pursuant to Section 20(a)(iii)2) 7.2, and paid any applicable pays the SKYE Termination Fee Amount or the EHT Termination Amount, as applicable, pursuant to Section 19(b)7.3.
(b2) During the Matching Period: (i) Purchaser will have , or such longer period as the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement Receiving Party may approve in order writing for such Acquisition Proposal to cease to be a Superior Proposal, (ii) purpose the directors of Vitran Receiving Party’s special committee shall review any offer made by Purchaser the other Party under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Receiving Party’s special committee determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Receiving Party shall promptly so advise Purchaser the other Party and the Parties shall amend this Agreement to reflect such offer made by Purchaserthe other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Receiving Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4 and Purchaser the other Party shall not have be afforded a new Matching Period (provided that any such subsequent Matching Period will only be three Business Days) from the right later of the date on which such other Party received the Superior Proposal Notice and the date on which such other Party received all of the materials set forth in Section 5.4(1)(c) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Receiving Party.
(d4) The Receiving Party’s board of directors shall promptly reaffirm the EHT Board Recommendation or the SKYE Board Recommendation, as the case may be, by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Receiving Party’s board of directors determines that a proposed amendment to the terms of this Agreement as contemplated Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Receiving Party shall provide the other Party and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the other Party and its counsel.
(5) If Vitran the Receiving Party provides a Superior Proposal Notice to Purchaser after the other Party on a date that is less than seven ten Business Days before the Vitran EHT Meeting or the SKYE Meeting, Vitran shall either as the case may be, the other Party will be entitled to require the Receiving Party to proceed with or shall adjourn or postpone such EHT Meeting or SKYE Meeting, as the Vitran Meeting case may be, in accordance with the terms of this Agreement to a date specified by the other Party that is not more than seven ten Business Days after the scheduled date of the Vitran EHT Meeting or the SKYE Meeting, as directed by Purchaser.
(e) Vitran the case may be, provided that in no event shall advise such adjourned or postponed meeting be held on a date that is less than five Business Days prior to the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.Outside Date.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Corporation receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Shareholder Approval, the Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal and make a Change in Recommendation, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, non-solicitation or similar agreement, restriction or covenant contained in any Contract entered into with the Corporation or any of its Subsidiaries;
(iib) Vitran the Corporation has been, and continues to be, be in compliance in all material respects with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Corporation has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which notice will include Proposal and to make a Change in Recommendation (the director’s determination regarding "Superior Proposal Notice");
(d) the Corporation has provided the Purchaser a copy of the definitive agreement for the Superior Proposal and all supporting materials containing material terms and conditions of the Superior Proposal any financing documents supplied to the Corporation in connection therewith and the cash value or range of value in financial terms that the directors of Vitran haveBoard has, in after consultation with Vitran’s outside financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (the “Superior Proposal Notice”)Proposal;
(ve) at least five (5) full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating materials referred to such Superior Proposalin Section 5.4(1)(d);
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board (i) have has determined in good faith, after consultation with Vitran’s the Corporation's outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) determined in good faith, after consultation with the Corporation's outside legal counsel that that the failure by the Board to cause the Corporation to enter into a definitive agreement and make a Change in Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) Vitran has terminated prior to or concurrently with entering into such definitive agreement and making a Change in Recommendation, the Corporation terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) [Superior Proposal] and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Corporation may approve in its sole discretion in writing for such purpose: (ia) the Purchaser will shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior ProposalProposal and the Board shall, (ii) in consultation with the directors of Vitran shall Corporation's outside legal counsel and financial advisers, review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; , and (iiib) Vitran if it would no longer constitute a Superior Proposal, the Corporation shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Plan of Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Corporation shall promptly so advise the Purchaser and the Parties Corporation and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new full five (5) Business Day Matching Period from the right later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials referred to further amend in Section 5.4(1)(d) with respect to each new Superior Proposal from the Arrangement in respect of a third such amendment or modification to any Acquisition ProposalCorporation.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is determined not to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement or the Plan of Arrangement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Corporation shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall give reasonable consideration to any comments provided by the Purchaser and its outside legal counsel.
(5) If Vitran the Corporation provides a Superior Proposal Notice to the Purchaser after a date that is less than seven ten (10) Business Days before the Vitran Meeting, Vitran the Corporation shall either proceed with or be entitled to and shall upon request from the Purchaser postpone the Vitran Meeting to a date that is not more than seven fifteen (15) Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaserbut in any event to a date that is less than five (5) Business Days prior to the Outside Date.
(e6) Vitran Nothing contained in this Article 5 shall advise prohibit the Vitran Subsidiaries Board from:
(a) making disclosure to Shareholders as required by applicable Law, including complying with section 2.17 of National Instrument 62-104 - Takeover Bids and their respective Representatives Issuer Bids and similar provisions under Securities Laws relating to the provision of a directors' circular in respect of an Acquisition Proposal, provided that the prohibitions set out Corporation shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of such circular or other disclosure and shall give reasonable consideration to any comments provided by the Purchaser and its outside legal counsel; or
(b) calling or holding a meeting of Shareholders requisitioned by Shareholders in Sections 16, 17 and 18 and accordance with the CBCA or taking any violation other action with respect to an Acquisition Proposal to the extent ordered or otherwise mandated by a court of the restrictions set forth competent jurisdiction in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitranaccordance with Law.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to obtaining the Required Approval, the Board may, subject to compliance with Article 7 and Section 8.2, withdraw, amend, modify or qualify, or publicly propose or state an intention to withdraw, amend, modify or qualify, the Board Recommendation (an “Adverse Recommendation”) and/or authorize the Company to enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction, which has not been waived pursuant to Section 5.1(3);
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice (a “Superior Proposal Notice”) of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in effect an Adverse Recommendation and/or terminate this Agreement and authorize the Company to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which notice will include ;
(d) the director’s determination regarding Company has provided the value or range Purchaser a copy of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under proposed definitive agreement for the Superior Proposal (and all supporting materials, including any financing documents, supplied to the “Company in connection therewith by the Person making the Superior Proposal Notice”)or its Representatives;
(ve) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(d);
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board (i) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure of the Board to authorize the Company to effect an Adverse Recommendation and/or terminate this Agreement and enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under Law; and
(viih) Vitran has terminated prior to or concurrent with the entering into of such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee Payment pursuant to Section 19(b)8.2.
(b2) During the Matching Period: (i) Purchaser will have , or such longer period as the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order Company may approve for such Acquisition Proposal to cease to be a Superior Proposalpurpose, (iia) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; Proposal and (iiib) Vitran shall if the Board determines that such Acquisition Proposal would be expected to cease to be a Superior Proposal as a consequence of acceptance of such offer, the Company shall, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend execute and deliver an amendment to this Agreement negotiated in accordance with the preceding sentence to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five Business Day Matching Period from the right later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release from time to time at the reasonable request of the Purchaser and after any Acquisition Proposal that is publicly announced is determined by the Board not to be a Superior Proposal or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in such Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven 10 Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall adjourn or postpone the Vitran Company Meeting to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran Company Meeting, as directed by Purchaser.
(e6) Vitran The Company shall advise the Vitran its Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 this Article 5 and any violation of the restrictions set forth in these sections this Article 5 by Vitranthe Company, the Vitran its Subsidiaries or the their respective Representatives is deemed to be a breach of these sections this Article 5 by Vitranthe Company. Furthermore, the Company shall be responsible for any breach of this Article 5 by it, its Subsidiaries and their respective Representatives excluding any Purchaser Party Representative.
Appears in 1 contract
Samples: Arrangement Agreement (Patheon Inc)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) Notwithstanding anything in respect this Agreement, but without limiting, and subject to compliance with, the remaining provisions of any this Section 5.4 and Article 7 and Section 8.2, if the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Company Shareholders, the Board may, subject to compliance with Article 7 and Section 8.2, terminate this Agreement in order, to enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill or similar restriction with the Company or any of its Subsidiaries;
(iib) Vitran the Company has been, and continues to be, in compliance with not breached its obligations under Sections 16, 17 and 18Section 5.1(1) in any non-de minimis respect or under any other provision of Article 5 in any material respect;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and authorize the Company to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the such Superior Proposal (the “Superior Proposal Notice”);
(vd) the Company or any of its Representatives has provided the Purchaser a copy of the proposed definitive agreement for the Superior Proposal, together with all related agreements (including any financing commitments or other documents containing any material terms or conditions of such Superior Proposal);
(e) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 5.4(1)(d);
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran Board (i) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2))) and (ii) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to authorize that the Company enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; and
(viih) Vitran has terminated prior to or simultaneously with so entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period: , or such longer period as the Company may approve in writing for such purpose:
(ia) the Purchaser will shall have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and terms of this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, and the Arrangement;
(iib) the directors of Vitran Board shall review any offer made by the Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and ;
(iiic) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Company and the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If ; and
(d) if the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Any amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) consideration to be received by the Vitran Company Shareholders or other amendment or modification of the material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in Section 5.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition new Superior Proposal.
(d4) If Vitran provides The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which the Board has determined not to be a Superior Proposal Notice is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in any Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser after and its outside legal counsel with a date that reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If the Company Meeting is less than seven Business Days before to be held during a Matching Period, the Vitran MeetingCompany may, Vitran and shall either proceed with at the request of the Purchaser, postpone or shall postpone adjourn the Vitran Company Meeting to a date that is not more than seven ten (10) Business Days after the scheduled date of the Vitran Company Meeting, but in any event to a date that would not prevent the Effective Date from occurring prior to the Outside Date.
(6) If the Company provides a Superior Proposal Notice to the Purchaser on a date that is less than seven (7) Business Days before the Company Meeting, the Company, shall if requested by the Purchaser, postpone or adjourn the Company Meeting to a date designated by the Purchaser that is not more than ten (10) Business Days after the scheduled date of the Company Meeting, as directed by the Purchaser, but in any event to a date that is not less than three (3) Business Days prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement (LKQ Corp)
Right to Match. (a) Vitran Notwithstanding Section 7.2, or anything to the contrary in this Agreement, if at any time following the date of this Agreement and prior to obtaining the Company Securityholder Approval or the Acquiror Shareholder Approval, as applicable, a Party receives an Acquisition Proposal that the Company Board or Acquiror Board, as applicable, concludes in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal, it may take any action that is prohibited by Sections 16(a)(iii) or (iv) enter into an Acquisition Agreement in respect of any Acquisition Proposal if and only ifsuch Superior Proposal, provided that:
(i) such Acquisition the Party receiving the Superior Proposal constitutes a Superior Proposalhas complied in all material respects with its obligations under Section 7.2;
(ii) Vitran the Party receiving the Superior Proposal has beenprovided the other Party with (A) a copy of the Superior Proposal, and continues to be, in compliance with its obligations under Sections 16, 17 and 18(B) a copy of the proposed Acquisition Agreement;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Party has delivered to the Purchaser other Party a written notice of the determination of the directors of Vitran Company Board or Acquiror Board, as applicable, that such Acquisition Proposal constitutes a Superior Proposal Proposal, and of the intention of the directors of Vitran Company Board or Acquiror Board, as applicable, to (A) make a Change in Recommendation and to accept, approve, endorse, recommend or and/or (B) enter into a definitive agreement an Acquisition Agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (collectively the “"Superior Proposal Notice”");
(viv) at least a period (the "Response Period") of not less than five Business Days (the “Matching Period”) have has elapsed from the date that is the later of of: (x) the date on which Purchaser received the other Party receives the Superior Proposal Notice Notice; and (y) the date on which Purchaser received the relevant Party receives a copy of the letter of intent or agreement relating to such Superior Proposal;Proposal and all related documents described in Section 7.2(d); and
(viv) if Purchaser the other Party has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b7.3(b), the directors of Vitran (i) have Company Board or Acquiror Board, as applicable, has determined in good faith, after consultation with Vitran’s its financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser the other Party under Section 18(b)); and
(vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b7.3(b).
(b) During the Matching Response Period: (i) Purchaser , the other Party will have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and this Agreement in order for and the Plan of Arrangement, including modification of the Consideration. The Party that delivered the Superior Proposal Notice shall review any such offer by the other Party to amend this Agreement and the Plan of Arrangement to determine whether the Acquisition Proposal to cease which the other Party is responding would continue to be a Superior Proposal when assessed against the Arrangement as it is proposed in writing by the other Party to be amended. If the Party that delivered the Superior Proposal Notice determines that the Acquisition Proposal no longer constitutes a Superior Proposal, when assessed against this Agreement and the Plan of Arrangement as they are proposed to be amended by the other Party, the Party that delivered the Superior Proposal Notice will enter into an amendment to this Agreement with the other Party incorporating the amendments to the Agreement and Plan of Arrangement as set out in the written offer to amend, and will promptly reaffirm its recommendation of the Arrangement by the prompt issuance of a press release to that effect. If the Party that delivered the Superior Proposal Notice determines that the Acquisition Proposal continues to be a Superior Proposal, (ii) it may enter into the directors Acquisition Agreement in respect of Vitran shall review any offer made by Purchaser to amend the terms of such Superior Proposal provided that before doing so it terminates this Agreement and pays the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order Company Termination Fee pursuant to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoingSection 8.2(c)(i).
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration Consideration (or value of such considerationConsideration) to be received by the Vitran Shareholders or holders of the applicable Party's securities shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and the other material terms or conditions thereof Party shall be afforded a new Response Period and Purchaser shall not have the right to further amend the Arrangement rights afforded in Section 7.3(d) in respect of a third each such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides Where a Party has provided a Superior Proposal Notice to Purchaser after on a date that is less than seven Business Days ten days before the Vitran Company Meeting or the Acquiror Meeting, Vitran shall as applicable, and the Response Period has not elapsed, then, subject to applicable Laws, at either proceed with Party's request, the Parties will postpone or shall postpone adjourn the Vitran Company Meeting and the Acquiror Meeting, to a date that is acceptable to the Parties, acting reasonably, which shall not more be later than seven Business Days 15 days after the scheduled date of the Vitran MeetingCompany Meeting and the Acquiror Meeting (and, as directed by Purchaser.
(e) Vitran in any event, prior to the Outside Date). In the event that the Parties amend the terms of this Agreement pursuant to Section 7.3(b), the Parties shall advise ensure that the Vitran Subsidiaries and their respective Representatives details of such amended Agreement are communicated to the shareholders of each Party prior to the resumption or convening of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries postponed or the respective Representatives is deemed to be a breach of these sections by Vitranadjourned meetings.
Appears in 1 contract
Right to Match.
(a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Company Shareholders, the Board may authorize the Company to enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill or similar restriction;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the good faith determination of the directors of Vitran Board, after consultation with its financial advisors and its outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such definitive agreement, together with a copy of the definitive agreement with respect to such for the Superior ProposalProposal and disclosure of the value, which notice will include the director’s determination regarding the value or range of value expressed in financial terms dollars, that the directors of Vitran haveBoard has, in consultation with Vitran’s its financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (collectively, the “Superior Proposal Notice”);
(viii) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or proposed definitive agreement relating for the Superior Proposal from the Company;
(iv) during any Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(b), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(viv) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.4(b), the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitranthe Company’s financial advisors and outside legal counsel and financial advisorscounsel, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b)5.4(b); and
(viivi) Vitran has terminated prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(a)(iii)(B) and paid any applicable pays the Termination Fee Amount pursuant to Section 19(b)7.4.
(b) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(a)(iv) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiiii) Vitran if it would no longer constitute a Superior Proposal, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise Purchaser the Purchaser, and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or a modification ofto, the consideration (or value of such consideration) to be received by the Vitran Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded an additional five-Business Day Matching Period from the right to further amend date on which the Arrangement in respect of a third such amendment or modification to any Acquisition ProposalPurchaser received the Superior Proposal Notice.
(d) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(b) would result in an Acquisition Proposal constituting a Superior Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its legal counsel.
(e) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven five Business Days before the Vitran Company Meeting, Vitran the Company may, and shall either proceed with or shall at the request of Purchaser, postpone the Vitran Company Meeting to a date that is not more than seven ten Business Days after the scheduled date of the Vitran MeetingCompany Meeting (and, as directed by Purchaserin any event, prior to the Outside Date).
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board may, subject to compliance with Article 8, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non- disclosure, use, business purpose or similar restriction;
(iib) Vitran The Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 6;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran The Company has delivered to the Purchaser Acquiror a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior such Acquisition Proposal (the “"Superior Proposal Notice”");
(vd) The Company has provided the Acquiror a draft of the proposed definitive agreement for the Superior Proposal and, if applicable, any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which Purchaser the Acquiror received the Superior Proposal Notice and the date on which Purchaser the Acquiror received a copy all of the letter of intent or agreement relating to such Superior Proposalmaterials set forth in Section 6.4(1)(d);
(vif) if Purchaser during any Matching Period, the Acquiror has offered had the opportunity (but not the obligation), in accordance with Section 6.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by Purchaser the Acquiror under Section 18(b6.4(2)); and
(viih) Vitran has terminated prior to or concurrently with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)28.2(1)(d) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.3.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review any offer made by Purchaser the Acquiror under Section 6.4(1) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall negotiate in good faith with Purchaser the Acquiror to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser the Acquiror to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise Purchaser the Acquiror and the Parties Company and the Acquiror shall amend this Agreement to reflect such offer made by Purchaserthe Acquiror, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.4, and Purchaser the Acquiror shall not have be afforded a new three (3) Business Day Matching Period from the right later of the date on which the Acquiror received the Superior Proposal Notice and the date on which the Acquiror received all of the materials set forth in Section 6.4(1)(d) with respect to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposalnew Superior Proposal from the Company.
(d4) The Board shall reaffirm the Board Recommendation by press release promptly, and not later than five (5) Business Days, after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 6.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Acquiror and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Acquiror and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to Purchaser after the Acquiror on a date that is less than seven 10 Business Days before the Vitran Special Meeting, Vitran shall either proceed with the Acquiror will be entitled to require the Company to adjourn or shall postpone the Vitran Special Meeting in accordance with the terms of this Agreement to a date specified by the Acquiror that is not more than 10 days after the scheduled date of the Special Meeting, provided that in no event shall such adjourned or postponed meeting be held on a date that is less than five (5) Business Days prior to the Outside Date. If a Matching Period would not terminate before the date fixed for the Special Meeting, the Company shall adjourn or postpone the Special Meeting to a date that is not more than seven at least five (5) Business Days after the scheduled date expiration of the Vitran Meeting, as directed by Purchaserapplicable Matching Period.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement (International Barrier Technology Inc)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Shareholders, the Board may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure, use, business purpose or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “"Superior Proposal Notice”");
(vd) the Company has provided to the Purchaser a copy of the proposed definitive agreement with respect to the Superior Proposal and all supporting materials (including any financing commitments or other documents in possession of the Company and its Representatives containing material terms and conditions of such Superior Proposal);
(e) at least five Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy of the letter proposed definitive agreement with respect to the Superior Proposal and all supporting materials (including any financing commitments or other documents in possession of intent or agreement relating to the Company and its Representatives containing material terms and conditions of such Superior Proposal) from the Company;
(vif) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(g) after the Matching Period, the directors of Vitran (i) have Board has determined in good faith, faith after consultation with Vitran’s outside its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of this Agreement and the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2)); and
(viih) Vitran has terminated prior to or concurrently with entering into such definitive agreement, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Board shall review in good faith any offer made by the Purchaser under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by Purchaser, the Purchaser and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five Business Day Matching Period from the right to further amend later of the Arrangement in respect date on which the Purchaser received the Superior Proposal Notice and a copy of a third such amendment or modification to any Acquisition Proposalthe proposed definitive agreement for the new Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as required by the Purchaser and its counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after on a date that is less than seven 10 Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone or adjourn the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven 10 Business Days after the scheduled date of the Vitran Company Meeting, as directed by Purchaserbut in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(e6) Vitran Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company to convene and hold the Company Meeting in accordance with Section 2.3 of this Agreement while this Agreement remains in force.
(7) Nothing contained in this Agreement shall prevent the Board from complying with Section 2.17 of National 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 an Acquisition Proposal that is not a Superior Proposal.
(8) Without limiting the generality of this Article 5, the Company shall advise the Vitran its Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 this Article 5 and any violation of the restrictions set forth out in these sections this Article 5 by Vitranthe Company, the Vitran its Subsidiaries or the their respective Representatives is shall be deemed to be a breach of these sections this Article 5 by Vitranthe Company.
Appears in 1 contract
Right to Match. (a) Vitran may take any action The Company covenants that is prohibited by Sections 16(a)(iii) or (iv) in respect of any Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has beenit shall not approve, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a definitive Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2(c)) unless:
(i) the Company has complied with respect to such its obligations under Section 7.2 and Section 7.3 and has provided the Purchaser with a copy of the Superior ProposalProposal (and, which if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice will include from the director’s determination regarding Company Board setting out the value or range of value values in financial terms that the directors of Vitran haveCompany Board, in consultation with Vitran’s financial advisorsthe Company Financial Advisors, determined in good faith should be ascribed to any such non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(vii) at least five Business Days a period (the “Matching Response Period”) have of five (5) calendar days has elapsed from the date that is the later of (i) the date on which the Purchaser received receives written notice from the Company Board that the Company Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal Notice Proposal, and (ii) the date on which the Purchaser received receives a copy of the letter of intent Superior Proposal from the Company and the Company Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement relating with respect to such the Superior Proposal;
(viiii) if the Purchaser has offered proposed to amend the terms of this Agreement and the Arrangement pursuant to in accordance with Section 18(b7.3(b), then, as required by Section 7.3(b), the directors of Vitran (i) Company Board shall have determined in good faith, after consultation with Vitran’s the Company Financial Advisors and outside legal counsel and financial advisorscounsel, that such the Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); andafter taking into account such amendments;
(viiiv) Vitran has the Company shall have terminated this Agreement pursuant to Section 20(a)(iii)28.2; and
(v) and the Company shall have previously paid any applicable or caused to be paid, or concurrently pays or causes to be paid, to the Purchaser (or as the Purchaser may direct by notice in writing) the Termination Fee pursuant to Section 19(b)Fee.
(b) During the Matching Response Period: (i) , the Purchaser will shall have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement Plan of Arrangement. During the Response Period, the Company shall negotiate in good faith after consultation with Vitran’s outside legal the Purchaser to enable the Purchaser to make such amendments to the terms of this Agreement and financial advisors, in order to determine whether such offer the Plan of Arrangement as would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and . Within five (iii5) Vitran shall negotiate in good faith with calendar days (the “Review Period”) of any such offer by the Purchaser to make such amendments to amend the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors Plan of Vitran determine that such Acquisition Proposal would cease to be a Superior ProposalArrangement, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in including an increase in, or modification of, the consideration (or value of such consideration) aggregate Consideration, the Company Board shall review and determine whether the Acquisition Proposal to which the Purchaser is responding would continue to be received a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by the Vitran Shareholders or other material terms or conditions thereof Purchaser to be amended. Such determination to be made by the Company Board shall be communicated to the Purchaser by the end of the Review Period. If the Company Board determines that the Acquisition Proposal to which the Purchaser is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by the Purchaser to be amended, the Company shall not have enter into an amendment to this Agreement to give effect to such amendments and the right to further amend Company Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in respect Section 2.5(b) by the prompt issuance of a third such amendment or modification press release to any Acquisition Proposalthat effect.
(dc) If Vitran provides a Superior Proposal Notice Where the Company has provided the Purchaser notice pursuant to Purchaser after a date that is Section 7.3(a)(ii) less than seven Business Days before (7) calendar days prior to the Vitran Company Meeting, Vitran shall either proceed with or if requested to do so by the Purchaser, the Company shall postpone or adjourn the Vitran Company Meeting to a date that is not less than seven (7) calendar days and not more than seven Business Days ten (10) calendar days after the scheduled date of such notice; provided, however, that in the Vitran Meetingevent that the Company Meeting is so adjourned, the Outside Date shall be extended by the same number of days as directed by Purchaserthe Company Meeting has been adjourned.
(d) Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and the Purchaser shall be afforded a new Response Period and the rights afforded in Section 7.3(b) in respect of each such Acquisition Proposal.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives Notwithstanding any of the prohibitions provisions of Section 7.2 and Section 7.3, the Company Board shall have the right to respond, within the time and in the manner required by applicable Securities Laws, to any take-over bid or tender or exchange offer made for the Company Shares that it determines is not a Superior Proposal; provided that:
(i) the Purchaser and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Company Board shall give reasonable consideration to such comments; and
(ii) notwithstanding that the Company Board may be permitted to respond in the manner set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitranherein to a take-over bid, the Vitran Subsidiaries or Company Board shall not be permitted to make a Company Change in Recommendation unless the respective Representatives is deemed to be a breach provisions of these sections by VitranSection 7.2 and Section 7.3 are met.
Appears in 1 contract
Samples: Arrangement Agreement (B2gold Corp)
Right to Match. (a) Vitran may take Subject to Section 5.3(b), the Company covenants that it will not accept, approve, recommend or enter into any action that is prohibited by Sections 16(a)(iii) agreement, understanding or (iv) arrangement in respect of any Acquisition a Superior Proposal if and only if(other than a confidentiality agreement permitted by Section 5.2(d)) unless:
(i) such an Acquisition Proposal has been made that the Board of Directors or relevant committee thereof determines in good faith constitutes a Superior Proposal;
(ii) Vitran has been, such Acquisition Proposal did not result from the willful and continues to be, in compliance with its intentional breach of the Company’s obligations under Sections 16, 17 Section 5.2 and 18the Company has provided Purchaser with a copy of the Superior Proposal;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior ProposalArrangement Resolution shall not yet have received the Requisite Approval at the Company Meeting;
(iv) Vitran has delivered to a period (the “Response Period”) of five Business Days shall have elapsed from the date on which Purchaser a received written notice (which notice shall include a copy of the determination documentation constituting the Acquisition Proposal) that the Board of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Directors or relevant committee thereof determined, subject only to make a Change in Recommendation and compliance with this Section 5.3, to accept, approve, endorse, recommend or enter into a definitive binding agreement to proceed with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Superior Proposal Notice”);
(v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered proposed to amend the terms of this Agreement and the Arrangement pursuant to in accordance with Section 18(b5.3(b), the directors Board of Vitran (i) Directors or relevant committee thereof shall have determined in good faith, faith after consultation with Vitran’s outside legal counsel and financial advisors, advisors that such the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(compared vi) the Company shall have terminated, or shall concurrently terminate, this Agreement pursuant to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)10.2(a)(iv)(A); and
(vii) Vitran the Company has terminated this Agreement pursuant previously, or concurrently will have, paid to Section 20(a)(iii)2Purchaser (or as Purchaser may direct by notice in writing) and paid any applicable the Termination Fee pursuant to Section 19(b10.4(a)(ii). In addition, notwithstanding any provision of this Agreement (but subject to the right of termination under Section 10.2(a)(iii)(B)), the Board of Directors and relevant committee thereof may make a Change in Recommendation and recommend or approve an Acquisition Proposal provided that the requirements of clauses (i) through (v) of this Section 5.3(a) are satisfied.
(b) During the Matching Response Period: ,
(i) Purchaser will have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and terms of this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors Agreement. The Board of Vitran shall Directors or relevant committee thereof will review any offer made such written proposal by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal faith, including an increase in, or modification of, the Consideration to be received by the Company Shareholders (other than Hydrogen Company and financial advisorsits affiliates), in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting to which Purchaser is responding would constitute a Superior Proposal ceasing when assessed against the Arrangement as it is proposed by Purchaser to be a Superior Proposal; amended. If the Board of Directors or relevant committee thereof does not so determine, the Board of Directors or relevant committee thereof will promptly reaffirm its recommendation of the transactions contemplated under this Agreement in substantially the same manner as described in Section 1.4 of Schedule C hereto and (iii) Vitran shall the Parties will negotiate in good faith with Purchaser to make such and enter into an amended agreement on reasonable terms reflecting the amendments to the terms of this Agreement and the Arrangement as would enable Purchaser proposed by Purchaser.
(ii) If the Board of Directors or relevant committee does so determine, the Company may after the end of the Response Period, approve, recommend, accept or enter into an agreement, understanding or arrangement to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Company Shareholders or other material terms or conditions thereof and Purchaser shall not have constitute a new Acquisition Proposal for purposes of this Section 5.3, provided that the right to further amend the Arrangement Response Period in respect of a third such amendment or modification to any new Acquisition Proposal shall extend only until the later of the end of the initial five Business Day Response Period and 24 hours after the Purchaser has received the Superior Proposal Notice for the new Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days the Response Period would not terminate before the Vitran date fixed for the Company Meeting, Vitran the Company shall either proceed with adjourn or shall postpone the Vitran Company Meeting to a date that is not more than seven at least five Business Days after the scheduled date expiration of the Vitran Meeting, as directed by PurchaserResponse Period (but not later than the fifth Business Day prior to the Outside Date).
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Securityholders, the Board may, subject to compliance with Section 8.2, make a Change in Recommendation and enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
: 48 (ia) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal constitutes a Superior Proposal;
pursuant to confidentiality, standstill, use of information, permitted purpose or similar restriction or covenant in an existing confidentiality or similar agreement; (iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
this Article 5 (iiiother than de minimis breaches); (c) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of its receipt of such Acquisition Proposal and of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such definitive agreement, together with a definitive agreement with respect to such Superior Proposal, which written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
; (vd) the Company has provided the Purchaser a copy of the proposed definitive agreement for such Acquisition Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith; (e) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy all of the letter of intent or agreement relating materials set forth in Section 5.4(1)(d); (f) during any Matching Period, the Purchaser has the right (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
; (vig) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.4(2), the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitranthe Company’s outside legal counsel counsels and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b)5.4(2); and
(viih) Vitran the Board has terminated determined in good faith, after consultation with the Company’s outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Acquisition Proposal in order to properly discharge its fiduciary duties; and (i) prior to or concurrently with entering into such definitive agreement with respect to such Acquisition Proposal, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (ia) the Purchaser will shall have the opportunity right (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, and the Arrangement; (iib) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) and Section 5.4(2)(a) to amend the terms of this Agreement and the Arrangement in good faith in order to determine, after consultation with Vitranthe Company’s outside legal counsels and financial advisors, in order to determine whether such offer made by the Purchaser would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiic) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior ProposalProposal following the offer made by the Purchaser, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Securityholders or any other material terms or conditions thereof amendment to such Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement date on which the Purchaser received the new Superior Proposal Notice and all of the material set forth in respect of a third such amendment or modification to any Acquisition ProposalSection 5.4(1)(d) for the new Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsels and financial advisors with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its legal counsels and financial advisors.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven (7) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with be entitled to, and the Purchaser and the Guarantor shall be entitled to require the Company to, adjourn or shall postpone the Vitran Company Meeting to a date that is not more than seven 15 Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserCompany Meeting but in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a1) Vitran may take If at any action that is prohibited by Sections 16(a)(iii) or (iv) in respect time following the date of any this Agreement and prior to obtaining the Required Shareholder Approval at the Meeting, the Corporation receives an unsolicited Acquisition Proposal that constitutes a Superior Proposal, the Board may authorize the Corporation to enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to any existing confidentiality, standstill or similar restriction to which the Corporation is party;
(iib) Vitran such Superior Proposal did not arise, directly or indirectly, as a result of a violation by the Corporation of this Article 5 in any material respect, and the Corporation has been, been and continues to be, be in compliance with its obligations under Sections 16, 17 and 18this Article 5 in all material respects;
(iiic) such Acquisition Proposal is in writing and Purchaser the Corporation has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a with (i) written notice of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement agreement, together with respect to such Superior Proposal, which (ii) written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under such Acquisition Proposal (the Superior Proposal (the “Superior Proposal Notice”);
(vd) the Corporation has provided the Purchaser with a copy of the proposed definitive agreement for the Superior Proposal and all schedules and exhibits thereto, together with any financing documents supplied to the Corporation in connection therewith;
(e) at least five (5) Business Days (the “Matching Period”) shall have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy all of the letter materials set forth in Section 5.4(1)(d) above (it being understood that the Corporation shall promptly inform the Purchaser of intent any amendment to the financial or agreement relating to other material terms of such Superior ProposalProposal during such period);
(vif) if Purchaser has offered to amend this Agreement and after the Arrangement pursuant to Section 18(b)Matching Period, the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitran’s outside its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (Proposal, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2));
(g) after the Matching Period, the Board has determined, in good faith, after consultation with its legal counsel, that failure the of the Board to make a Change in Recommendation and to enter into a definitive agreement with respect to such Superior Proposal would be inconsistent with its fiduciary duties; and
(viih) Vitran has terminated prior to or concurrently with entering into a definitive agreement with respect to such Superior Proposal, the Corporation terminates this Agreement pursuant to Section 20(a)(iii)27.2(4)(b) and paid any applicable pays the Corporation Termination Fee pursuant to Section 19(b)7.3.
(b2) During the Matching Period, or such longer period as the Corporation may approve in writing for such purpose: (ia) the Purchaser will shall have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and terms of this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, and the Arrangement; (iib) the directors of Vitran Board shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine determine, in consultation with its financial and outside legal advisors, whether such offer wouldthe Purchaser’s amended offer, upon acceptance, result in would cause the Acquisition Proposal previously constituting a Superior Proposal ceasing giving rise to the Matching Period to cease to be a Superior Proposal; and (iiic) Vitran shall negotiate in good faith with Purchaser if the Board determines that the Acquisition Proposal giving rise to make such amendments Matching Period no longer constitutes a Superior Proposal compared to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease they are proposed to be a Superior Proposalamended by the Purchaser, Vitran the Corporation shall promptly so advise the Purchaser and the Parties shall amend this Agreement to reflect give effect to such offer made by Purchaseramendments, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive material modification to any Acquisition Proposal that results in an increase into, or a modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material amendment to the terms or conditions thereof shall constitute a new Acquisition Proposal for purposes of the requirements under Section 5.4, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received all of the materials set forth in respect of a third such amendment or modification to any Acquisition ProposalSection 5.4(1)(d) above.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such Acquisition Proposal shall not be considered to be in violation of this Section 5.4(4) provided the Board has re-affirmed the Board Recommendation before the end of such five (5) Business Day period). The Corporation shall provide the Purchaser and its outside legal advisors with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(5) If Vitran the Corporation provides a Superior Proposal Notice to the Purchaser after a date that is less than seven ten (10) Business Days before the Vitran Meeting, Vitran the Corporation shall either proceed with or shall postpone or adjourn the Vitran Meeting Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.ten
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Securityholders, the Board may, subject to compliance with Section 8.2, make a Change in Recommendation and enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(ia) the Person making the Acquisition Proposal was not restricted from making such Acquisition Proposal constitutes a Superior Proposalpursuant to confidentiality, standstill, use of information, permitted purpose or similar restriction or covenant in an existing confidentiality or similar agreement;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5 (other than de minimis breaches);
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of its receipt of such Acquisition Proposal and of the determination of the directors of Vitran Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into such definitive agreement, together with a definitive agreement with respect to such Superior Proposal, which written notice will include from the director’s determination Board regarding the value or range of value in and financial terms that the directors of Vitran haveBoard, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior such Acquisition Proposal (the “Superior Proposal Notice”);
(vd) the Company has provided the Purchaser a copy of the proposed definitive agreement for such Acquisition Proposal and all supporting materials, including any financing documents supplied to the Company in connection therewith;
(e) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which Purchaser received a copy all of the letter of intent or agreement relating materials set forth in Section 5.4(1)(d);
(f) during any Matching Period, the Purchaser has the right (but not the obligation), in accordance with Section 5.4(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(vig) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.4(2), the directors of Vitran (i) have Board has determined in good faith, after consultation with Vitranthe Company’s outside legal counsel counsels and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2));
(h) the Board has determined in good faith, after consultation with the Company’s outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Acquisition Proposal in order to properly discharge its fiduciary duties; and
(viii) Vitran has terminated prior to or concurrently with entering into such definitive agreement with respect to such Acquisition Proposal, the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period: , or such longer period as the Company may approve in writing for such purpose:
(ia) the Purchaser will shall have the opportunity right (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, and the Arrangement;
(iib) the directors of Vitran Board shall review any offer made by the Purchaser under Section 5.4(1)(f) and Section 5.4(2)(a) to amend the terms of this Agreement and the Arrangement in good faith in order to determine, after consultation with Vitranthe Company’s outside legal counsels and financial advisors, in order to determine whether such offer made by the Purchaser would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and and
(iiic) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Board determines that such Acquisition Proposal would cease to be a Superior ProposalProposal following the offer made by the Purchaser, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders Securityholders or any other material terms or conditions thereof amendment to such Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement date on which the Purchaser received the new Superior Proposal Notice and all of the material set forth in respect of a third such amendment or modification to any Acquisition ProposalSection 5.4(1)(d) for the new Superior Proposal from the Company.
(d4) The Board shall promptly reaffirm the Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or publicly disclosed or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsels and financial advisors with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its legal counsels and financial advisors.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven (7) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with be entitled to, and the Purchaser and the Guarantor shall be entitled to require the Company to, adjourn or shall postpone the Vitran Company Meeting to a date that is not more than seven 15 Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserCompany Meeting but in any event the Company Meeting shall not be postponed to a date which would prevent the Effective Date from occurring on or prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) For so long as not less than $1,000,000 of Obligations under the Purchased Debenture remain outstanding, if the Company receives an Acquisition Proposal in respect of which the Company Board determines, in its good faith judgment, after receiving the advice of its outside legal counsel and financial advisor(s) and after taking into account all the terms and conditions of the Acquisition Proposal, including all financial and regulatory aspects of such proposal, would, if consummated in accordance with its terms (but without assuming away any risk of non-completion), be fair to the Company Shareholders and in the best interests of the Company, the Company Board may authorize the Company to enter into a definitive agreement with respect to such Acquisition Proposal Proposal, if and only if:
(ia) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser Archerwill a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Company Board to make a Change in Recommendation and to approve, accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which the Acquisition Proposal and notice will include as to the director’s determination regarding the value or range of value in financial terms that the directors of Vitran haveCompany Board has, in consultation with Vitran’s its financial advisorsadvisor(s) and/or any valuator or independent valuator, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Acquisition Proposal (the a “Superior Proposal Notice”);
(vb) the Company has provided Archerwill with a copy of the proposed definitive agreement for the Acquisition Proposal, together with all materials related to any financing required for such proposal and any valuation of non-cash consideration; and
(c) at least five 15 Business Days (the “Matching Period”) have elapsed from the date that is the later of (A) the date on which Purchaser Archerwill received the Superior Proposal Notice and (B) the date on which Purchaser Archerwill received a copy all of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and
(vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b).
(b) During the Matching Period: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions materials set forth in these sections by Vitran, Section 2.1(b) (the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran“Response Period”).
Appears in 1 contract
Samples: Subscription Agreement
Right to Match. (a) Vitran may take FCGI covenants that neither it nor the FCGI Board will accept, approve, endorse, recommend or enter into any action that is prohibited by Sections 16(a)(iii) agreement, understanding or (iv) arrangement in respect of any Acquisition a Superior Proposal if and only if(other than an Acceptable Confidentiality Agreement permitted by Section 7.01(c)) unless:
(i) such Acquisition Proposal constitutes a Superior Proposalthe FCGI Meeting has not occurred;
(ii) Vitran FCGI (the "Terminating Party") has been, and continues to be, in compliance complied with its obligations under Sections 16, 17 Section 7.01 and 18has provided Purchaser (the "Matching Party") with a copy of the Superior Proposal and all related documentation described in Section 7.01(d);
(iii) such Acquisition Proposal a period (the "Response Period") of five (5) Business Days has elapsed from the date that is in writing and Purchaser has been provided with a copy the later of: (x) the date on which the Matching Party receives written notice from the Board of Directors of the letter of intent or agreement relating Terminating Party that it has determined, subject only to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and compliance with this Section 7.02, to accept, approve, endorse, recommend or enter into a definitive binding agreement to proceed with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal ; and (the “Superior Proposal Notice”);
(vy) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which Purchaser received the Superior Proposal Notice and the date on which Purchaser received Matching Party receives a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under and all related documents described in Section 18(b)7.01(d); and
(viiiv) Vitran has terminated this Agreement is terminated pursuant to subsection Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b).8.02(a)(iv)A.
(b) During the Response Period, or such longer period as FCGI may approve for such purpose, the Matching Period: (i) Purchaser Party will have the opportunity (right, but not the obligation) , to offer to amend this Arrangement Agreement and the Plan of Arrangement, including modification of the Arrangement Consideration. The Board of Directors of the Terminating Party shall review any such offer by the Matching Party to amend this Arrangement Agreement and this Agreement in order for such the Plan of Arrangement to determine whether the Acquisition Proposal to cease which the Matching Party is responding would continue to be a Superior Proposal when assessed against the Arrangement as it is proposed in writing by the Matching Party to be amended. The Terminating Party agrees that, subject to the Terminating Party's disclosure obligations under applicable securities Laws, the fact of the making of, and each of the terms of, any such proposed amendment shall be kept strictly confidential and shall not be disclosed to any person (including, without limitation, the Person having made the Superior Proposal), other than the Terminating Party's Representatives, without the Matching Party's prior written consent. If the Board of Directors of the Terminating Party determines that the Acquisition Proposal no longer constitutes a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of when assessed against this Arrangement Agreement and the Plan of Arrangement as they are proposed to be amended by the Matching Party, the Board of Directors of the Terminating Party will cause it to enter into an amendment to this Arrangement Agreement with the Matching Party incorporating the amendments to the Agreement and Plan of Arrangement as set out in the written offer to amend, and will promptly reaffirm its recommendation of the Arrangement by the prompt issuance of a press release to that effect. If the Board of Directors of the Terminating Party continues to believe in good faith (after consultation with Vitran’s its financial advisors and its outside legal counsel) that the Acquisition Proposal continues to be a Superior Proposal and financial advisorstherefore rejects the Matching Party's offer to amend this Arrangement Agreement and the Plan of Arrangement, the Terminating Party may recommend that holders of its securities accept such Superior Proposal provided that before doing so the Terminating Party terminates this Arrangement Agreement and pays, or causes to be paid, the Termination Fee in accordance with Section 7.03, as the case may be, in order to determine whether such offer wouldaccept or enter into an agreement, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable Purchaser understanding or arrangement to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior Proposal, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof holders of the Terminating Party's securities shall constitute a new Acquisition Proposal for the purposes of this Section 7.02 and Purchaser the Matching Party shall not have be afforded a new Response Period and the right to further amend the Arrangement rights afforded in Section 7.02(b) in respect of a third each such amendment or modification to any Acquisition Proposal.
(d) If Vitran . In circumstances where FCGI provides the Purchaser with notice of a Superior Proposal Notice to Purchaser after and all documentation contemplated by Section 7.01(d) on a date that is less than seven 10 Business Days before prior to the Vitran FCGI Meeting, Vitran FCGI may, and upon the request of the Purchaser, FCGI shall either proceed with adjourn or shall postpone the Vitran FCGI Meeting in accordance with the terms of this Arrangement Agreement to a date that is not more than seven Business Days 10 days after the scheduled date of the Vitran such FCGI Meeting, as directed provided, however, that the FCGI Meeting shall not be adjourned or postponed to a date later than the 10th Business Day prior to the Completion Deadline.
(d) The FCGI Board shall reaffirm its recommendation for the Plan of Arrangement by Purchasernews release promptly after (i) the FCGI Board has determined that any Acquisition Proposal is not a Superior Proposal if the Acquisition Proposal has been publicly announced or made; or (ii) the FCGI Board makes the determination referred to in Section 7.01 that an Acquisition Proposal that has been publicly announced or made and which previously constituted a Superior Proposal has ceased to be a Superior Proposal, and the Parties have so amended the terms of this Arrangement Agreement and the Plan of Arrangement. The Purchaser and its outside legal counsel shall be given a reasonable opportunity to review and comment on the form and content of any such news release and FCGI shall give reasonable consideration to all amendments to such press release requested by the Purchaser and its outside legal counsel. Such news release shall state that the FCGI Board has determined that such Acquisition Proposal is not a Superior Proposal.
(e) Vitran shall advise FCGI will not become a party to any Contract with any person subsequent to the Vitran Subsidiaries date hereof that limits or prohibits FCGI from (i) providing or making available to the Purchaser and their respective its affiliates and Representatives of any information provided or made available to such person or its officers, directors, employees, consultants, advisors, agents or other representatives (including solicitors, accountants, investment bankers and financial advisors) pursuant to an Acceptable Confidentiality Agreement or (ii) providing the prohibitions set out in Sections 16, 17 Purchaser and 18 its affiliates and Representatives with any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed other information required to be a breach of these sections given to it by VitranFCGI under this Sections 7.01 or 7.02.
Appears in 1 contract
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution, the Company Board may authorize the Company to enter into a definitive agreement with respect to such Superior Proposal or may make a Company Change in Recommendation, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing confidentiality standstill, non-disclosure, non-solicitation or similar agreement, restriction or covenant contained in any Contract entered into with the Company or any of its Subsidiaries;
(ii) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior ProposalProposal or make a Company Change in Recommendation, which including a notice will include as to the director’s determination regarding the value or range of value in financial terms that the directors of Vitran haveCompany Board has, in consultation with Vitran’s its financial advisors, determined should be ascribed to any non-cash consideration, if any, consideration offered under the Superior Proposal (the “a "Superior Proposal Notice”");
(iv) the Company or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal and all supporting materials (including any financing documents, subject to customary confidentiality provisions with respect to fee letters or similar information) provided to the Company in connection therewith;
(v) at least five full Business Days (the “"Matching Period”") have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and the date on which the Purchaser received a copy from the Company of the letter definitive agreement and all of intent or agreement relating the materials referred to such Superior Proposalin Section 5.4(a)(iv);
(vi) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(b), to offer to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to Section 18(b)cease to be a Superior Proposal;
(vii) after the Matching Period, the directors of Vitran Company Board:
(iA) have has determined in good faith, after consultation with Vitran’s its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement (and, if applicable, as proposed to be amended by the Purchaser under Section 18(b5.4(b)); and
(viiB) Vitran has terminated this Agreement pursuant determined in good faith, after consultation with its outside legal counsel, that the failure by the Company Board to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant recommend that the Company enter into a definitive agreement or to Section 19(b)make a Company Change in Recommendation with respect to such Superior Proposal would be inconsistent with the Company Board's fiduciary duties.
(b) During the Matching Period: , or such longer period as the Company may approve in its sole discretion and in writing for such purpose:
(i) the Purchaser will shall have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, and the Arrangement;
(ii) the directors of Vitran shall Company Board shall, in good faith and in consultation with its outside legal counsel and financial advisors, review any offer made by the Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting determined to constitute a Superior Proposal ceasing to be a Superior Proposal; and and
(iii) Vitran the Company shall, and shall cause its Representatives to, negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If If, as a consequence of the directors of Vitran determine foregoing, the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by Purchaser, the Purchaser and shall take and or cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments Each successive amendment or modifications modification to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for purposes of this Section 5.4, and to the extent such new Acquisition Proposal is determined to be a Superior Proposal, the Purchaser shall not have be afforded a new Matching Period from the right later of the date on which the Purchaser received a new Superior Proposal Notice and the date on which the Purchaser received from the Company a copy of the definitive agreement and all of the materials referred to further amend the Arrangement in Section 5.4(a)(iv) with respect of a third to each such amendment or modification to any Acquisition new Superior Proposal.
(d) The Company Board shall promptly reaffirm the Company Board Recommendation by way of a press release issued by the Company after:
(i) any Acquisition Proposal that the Company Board has determined not to be a Superior Proposal is publicly announced; or
(ii) the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(b) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall give reasonable consideration to any amendments to such press release requested by the Purchaser or its outside legal counsel.
(e) If Vitran the Company provides a Superior Proposal Notice to the Purchaser after a date that is less than seven ten Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or be entitled to, and shall upon request from the Purchaser, postpone the Vitran Company Meeting to a date that is not more than seven ten Business Days after the scheduled date of the Vitran Company Meeting, as directed by Purchaserbut in any event to a date that is not less than five Business Days prior to the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Company Shareholders, the Company Board may authorize the Company to, subject to compliance with Section 7.4, enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal constitutes a Superior Proposalpursuant to an existing standstill or similar restriction;
(iib) Vitran the Company has been, and continues to be, in compliance in all material respects with its obligations under Sections 16, 17 and 18Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Company Board to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which together with a written notice will include from the director’s determination Company Board regarding the value or range of value in and financial terms that the directors of Vitran haveCompany Board, in consultation with Vitran’s its financial advisors, has determined should be ascribed to any non-cash consideration, if any, consideration offered under the such Superior Proposal (the “Superior Proposal Notice”);
(vd) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and from the date on which Purchaser received a copy of the letter of intent or agreement relating to such Superior ProposalCompany;
(vie) if during any Matching Period, the Purchaser has offered had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to the Company to amend this Agreement and the Arrangement pursuant in order for such Acquisition Proposal to cease to be a Superior Proposal;
(f) if the Purchaser has offered to the Company to amend this Agreement and the Arrangement under Section 18(b5.4(2), the directors of Vitran (i) have Company Board has determined in good faith, after consultation with Vitranthe Company’s outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b5.4(2));
(g) the Company Board has determined in good faith, after consultation with the Company’s outside legal counsel and financial advisors that it is appropriate for the Company to enter into a definitive agreement with respect to such Superior Proposal; and
(viih) Vitran has terminated prior to or concurrent with entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(ii) and paid any applicable pays the Termination Fee pursuant to Section 19(b)7.4.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Company Board shall review any offer made by the Purchaser under Section 5.4(1)(e) to amend the terms of this Agreement and the Arrangement in good faith after faith, in consultation with Vitranthe Company’s outside legal counsel and financial advisorsadvisers, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran if the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal as a result of such amendment, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement in respect of a third such Each successive amendment or modification to any Acquisition ProposalProposal shall constitute a new Acquisition Proposal for the purposes of this Section 5.4, and the Purchaser shall be afforded a new five Business Day matching period from the date on which the Purchaser received the new Superior Proposal Notice from the Company.
(d4) At the Purchaser’s request, the Company Board shall promptly reaffirm the Company Board Recommendation by press release after the Company Board determines that an Acquisition Proposal is not a Superior Proposal or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its outside legal counsel.
(5) If Vitran the Company provides a Superior Proposal Notice to the Purchaser on or after a date that is less than seven ten Business Days before the Vitran Company Meeting, Vitran shall either proceed with or shall the Company shall, at the Purchaser’s request, postpone the Vitran Company Meeting to a date acceptable to both Parties (acting reasonably) that is not more than seven ten Business Days after the scheduled date of the Vitran Meeting, as directed by PurchaserCompany Meeting but before the Outside Date.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Right to Match. (a) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any Acquisition Proposal if and only if:
(i) such Acquisition Proposal constitutes a Superior Proposal;
(ii) Vitran has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to Target shall not accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a definitive Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2(c)) unless:
(i) Target has:
(A) complied with its obligations under Section 7.2;
(B) provided Xxxxxxx with a copy of the Superior Proposal and all related documentation described in Section 7.2(d); and
(C) delivered written notice (the “Superior Proposal Notice”) to Xxxxxxx that, in accordance with Section 7.2, the Target Board
(A) has determined that the Acquisition Proposal is a Superior Proposal, and (B) has determined, subject to compliance with this Section 7.3, to approve or recommend such Superior Proposal and/or that Target enter into a binding agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range together with a copy of value in financial terms such agreement that the directors is capable of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal acceptance by Target;
(ii) a period (the “Superior Proposal NoticeResponse Period”);
(v) at least of five Business Days (the “Matching Period”) have has elapsed from the date that is the later of (i) the date on which Purchaser received Xxxxxxx receives the Superior Proposal Notice and (ii) the date on which Purchaser received Xxxxxxx receives a copy of the letter of intent or agreement relating to such Superior Proposal;
(vi) if Purchaser has offered to amend this Agreement and the Arrangement pursuant to Section 18(b), the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under and all related documentation described in Section 18(b)7.2(d); and
(viiiii) Vitran Target has terminated complied with this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b)7.3.
(b) During the Matching Response Period: (i) Purchaser , Xxxxxxx will have the opportunity (right, but not the obligation) , to offer in writing to amend the Arrangement and this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate consideration. Target shall cooperate with Xxxxxxx with respect to any amendment offer, including negotiating in order for good faith with Xxxxxxx to enable Xxxxxxx to make such amendments to this Agreement and the Plan of Arrangement as Xxxxxxx deems appropriate as would enable Xxxxxxx to proceed with the transactions contemplated by this Agreement and the Plan of Arrangement on such amended basis. The Target Board shall review any such offer by Xxxxxxx that is made before the expiry of the Response Period to amend this Agreement and the Plan of Arrangement to determine, in good faith in the exercise of its fiduciary duties, whether the Acquisition Proposal to cease which Xxxxxxx is responding would continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as it is proposed by Xxxxxxx to be amended. If the Target Board determines that the Acquisition Proposal to which Xxxxxxx is responding:
(i) no longer constitutes a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed to be amended, the Target Board shall cause Target to enter into an amendment to this Agreement with Xxxxxxx incorporating the amendments to the Agreement and Plan of Arrangement as set out in Xxxxxxx’x offer to amend, and shall promptly reaffirm its recommendation of the Arrangement by the issuance of a news release to that effect; or
(ii) continues to be a Superior Proposal, Target may approve and recommend that holders of Target Shares accept such Superior Proposal provided that Target terminates this Agreement and concurrently with such termination Target pays the Termination Payment pursuant to Section 8.2(a)(iii)(A).
(c) The Target Board shall reaffirm its recommendation of the Arrangement by news release promptly after:
(i) the Target Board determines that any Acquisition Proposal that has been publicly announced or made is not a Superior Proposal;
(ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting Target Board determines that a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with Purchaser to make such amendments proposed amendment to the terms of this Agreement and the Plan of Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such result in an Acquisition Proposal would cease to be not being a Superior Proposal, Vitran shall promptly so advise Purchaser Proposal and the Parties shall amend have entered into an amendment to this Agreement incorporating such amendments; or
(iii) the written request of Xxxxxxx given on or within five Business Days ending the Business Day before the Target Meeting, and Xxxxxxx and its legal advisors shall be given a reasonable opportunity to reflect review and comment on the form and content of any such offer news release and Target shall incorporate all reasonable comments made by Purchaser, Xxxxxxx and shall take and cause to be taken all such actions as are necessary to give effect to the foregoingits legal advisors.
(cd) The right of Purchaser under this Section 18 If the Target Meeting falls during a Response Period, Target shall continue to amend take all reasonable steps necessary to hold the Arrangement shall apply Target Meeting as originally scheduled, but may, upon giving notice to Xxxxxxx, postpone the meeting to a maximum date that is no more than two Business Days after the expiry of two amendments such Response Period.
(e) Where, at any time before the Target Meeting, Target has provided Xxxxxxx with a Superior Proposal Notice, an Acquisition Proposal has been publicly disclosed or modifications announced and the Response Period has not elapsed, then, subject to applicable laws, at Xxxxxxx’x request, Target will postpone or adjourn the Target Meeting to a date acceptable to Xxxxxxx, acting reasonably.
(f) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof holders of the Target Shares shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Purchaser Xxxxxxx shall not have be afforded a new Response Period and the right to further amend the Arrangement rights afforded in Section 7.3(a) in respect of a third each such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice to Purchaser after a date that is less than seven Business Days before the Vitran Meeting, Vitran shall either proceed with or shall postpone the Vitran Meeting to a date that is not more than seven Business Days after the scheduled date of the Vitran Meeting, as directed by Purchaser.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a) Vitran may take The Company covenants that it will not accept, approve, recommend or enter into any action that is prohibited by Sections 16(a)(iii) or (iv) agreement, in respect of a Takeover Proposal (and shall not make nor allow any Acquisition Proposal if and only ifpublic communication about such Takeover Proposal), unless:
(i) such Acquisition the Takeover Proposal constitutes is a Superior Proposal;
(ii) Vitran the Company has beenprovided to the Purchaser a copy of the Takeover Proposal or the full details thereof (and any subsequent amendment thereof) and the identity of the persons involved, and continues to be, in compliance with its obligations under Sections 16, 17 and 18;which information Purchaser shall keep strictly confidential; and
(iii) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran has delivered to the Purchaser a written notice of the determination of the directors of Vitran that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal period (the “Superior Proposal NoticeResponse Period”);
(v) at least of five Business Days (the “Matching Period”) shall have elapsed from the date that is the later latest of (i) the date on which the Purchaser received written notice from the Company that the Company Board determined, subject only to compliance with this Section 4.6, to accept, approve, recommend or enter into a binding agreement to proceed with the Superior Proposal Notice Proposal, and (ii) the date on which the Purchaser received a copy of the letter of intent or agreement relating to such Superior Proposal;
, provided, for the avoidance of doubt, that, notwithstanding Section 4.5 above, in the event of receipt of any such Takeover Proposal, the Company and its Representatives shall be allowed to provide information to, and participate in discussions and negotiations with the person having made such Takeover Proposal, provided such person has signed a confidentiality agreement with the Company on terms not less restrictive (viincluding standstill provisions) if Purchaser has offered to amend this Agreement on the other party than the confidentiality agreement signed on October 24, 2008 between the Company and the Arrangement pursuant Purchaser, and provided that all information which is provided to Section 18(b)the third party is simultaneously provided to the Purchaser. During the Response Period, the directors of Vitran (i) have determined in good faith, after consultation with Vitran’s outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by Purchaser under Section 18(b)); and
(vii) Vitran has terminated this Agreement pursuant to Section 20(a)(iii)2) and paid any applicable Termination Fee pursuant to Section 19(b).
(b) During the Matching Period: (i) Purchaser will shall have the opportunity (right, but not the obligation) , to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (ii) the directors of Vitran shall review any offer made by Purchaser to amend the terms of this Agreement and/or of the Offers and the Arrangement in good faith after consultation with Vitran’s outside legal Company shall, and financial advisorsshall cause its advisors to, in order to determine whether such offer would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iii) Vitran shall negotiate in good faith with the Purchaser to make such amendments adjustments to the terms and conditions of this Agreement and/or the Offers as would enable the Company to proceed with this Agreement and the Offers as amended, rather than the Superior Proposal. If during the Response Period, the Purchaser submits a proposal to amend the terms of this Agreement and the Arrangement as would enable Purchaser to proceed with the Transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine that such Acquisition Proposal would cease to be a Superior ProposalAgreement, Vitran shall promptly so advise Purchaser and the Parties shall amend this Agreement to reflect such offer made by Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications to any Acquisition Proposal that results in including an increase in, or modification of, the consideration (or value of such consideration) Offer Prices, the Company Board shall review and determine whether the Takeover Proposal to which the Purchaser is responding would be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have the right to further amend the Arrangement in respect of a third such amendment or modification to any Acquisition Proposal.
(d) If Vitran provides a Superior Proposal Notice when assessed against this Agreement and/or the Offers as they are proposed by the Purchaser to be amended. If the Company Board does not so determine, the Company Board, subject to Purchaser after a date and Company entering into an amendment to this Agreement, will promptly reaffirm that is less than seven Business Days before the Vitran MeetingOffers, Vitran shall either as revised, are in the best interests of the Company, its employees and its shareholders and other holders of Securities by confirming its Initial Company Board Recommendation or its Company Board Recommendation. If the Company Board does so determine, the Company may approve and recommend that holders of Securities accept such Superior Takeover Proposal and may terminate this Agreement pursuant to Section 8.1 to proceed with or the Superior Proposal, provided that such termination shall postpone only be effective if such Superior Proposal, to the Vitran Meeting to extent it is a date that tender offer, is not more than seven Business Days after filed with the scheduled date of AMF and cleared (déclaré conforme) by the Vitran Meeting, as directed by PurchaserAMF.
(e) Vitran shall advise the Vitran Subsidiaries and their respective Representatives of the prohibitions set out in Sections 16, 17 and 18 and any violation of the restrictions set forth in these sections by Vitran, the Vitran Subsidiaries or the respective Representatives is deemed to be a breach of these sections by Vitran.
Appears in 1 contract
Samples: Memorandum of Understanding (Sierra Wireless France SAS)
Right to Match. (a1) Vitran may take any action that is prohibited by Sections 16(a)(iii) or (iv) in respect of any If the Company receives an Acquisition Proposal for the Company that constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Company Shareholders, the Company may, subject to compliance with Article 7 and Section 8.2, enter into a definitive agreement with respect to such Acquisition Proposal, if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Proposal constitutes a Superior Proposalpursuant to an existing confidentiality, standstill, non-disclosure or similar restriction with the Company;
(iib) Vitran the Company has been, and continues to be, in compliance with its obligations under Sections 16, 17 and 18this Article 5;
(iiic) such Acquisition Proposal is in writing and Purchaser has been provided with a copy of the letter of intent or agreement relating to such Superior Proposal;
(iv) Vitran Company has delivered to the Purchaser a written notice of the determination of the directors of Vitran Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the directors of Vitran Company to make a Change in Recommendation and to accept, approve, endorse, recommend or enter into a such definitive agreement with respect to such Superior Proposal, which notice will include the director’s determination regarding the value or range of value in financial terms that the directors of Vitran have, in consultation with Vitran’s financial advisors, determined should be ascribed to any non-cash consideration, if any, offered under the Superior Proposal (the “Company Superior Proposal Notice”);
(vd) the Company has provided the Purchaser a copy of the proposed agreement for the Superior Proposal;
(e) at least five (5) Business Days (the “Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Company Superior Proposal Notice and the date on which Purchaser received a copy of the letter of intent or proposed agreement relating for the Superior Proposal from the Company;
(f) during the Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.5(2), to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(vig) if the Purchaser has offered to amend this Agreement and the Arrangement pursuant to under Section 18(b5.5(2), the directors of Vitran (i) have Company Board has determined in good faith, after consultation with Vitranthe Company’s outside legal counsel and financial advisorsadvisers, that such Acquisition Proposal continues to constitute a Superior Proposal (compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 18(b)5.5(2); and
(viih) Vitran has terminated prior to entering into such definitive agreement the Company terminates this Agreement pursuant to Section 20(a)(iii)27.2(1)(c)(iii) and paid any applicable pays the Company Termination Fee pursuant to Section 19(b)8.2.
(b2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (i) Purchaser will have the opportunity (but not the obligation) to offer to amend the Arrangement and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal, (iia) the directors of Vitran Company Board shall review any offer made by the Purchaser under Section 5.5(1)(f) to amend the terms of this Agreement and the Arrangement in good faith after consultation with Vitran’s outside legal and financial advisors, in order to determine whether such offer proposal would, upon acceptance, result in the Acquisition Proposal for the Company previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (iiib) Vitran the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the Transactions transactions contemplated by this Agreement on such amended terms. If the directors of Vitran determine Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Vitran the Company shall promptly so advise the Purchaser and the Parties Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(c3) The right of Purchaser under this Section 18 to amend the Arrangement shall apply to a maximum of two amendments or modifications Each successive amendment to any Acquisition Proposal that results in an increase inshall constitute a new Acquisition Proposal for the purposes of this Section 5.5, or modification of, and the consideration (or value of such consideration) to be received by the Vitran Shareholders or other material terms or conditions thereof and Purchaser shall not have be afforded a new five (5) Business Day Matching Period from the right to further amend later of the Arrangement in respect date on which the Purchaser received the Company Superior Proposal Notice and a copy of a third such amendment or modification to any Acquisition Proposalthe proposed agreement for the new Superior Proposal from the Company.
(d4) The Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal for the Company which is not determined to be a Superior Proposal is publicly announced or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.5(2) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with 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 the Company, acting reasonably.
(5) If Vitran the Company provides a Company Superior Proposal Notice to the Purchaser after a date that is less than seven five (5) Business Days before the Vitran Company Meeting, Vitran the Company shall either proceed with or shall postpone the Vitran Meeting Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not less than five (5) Business Days and not more than seven ten (10) Business Days after the scheduled date of the Vitran Company Meeting; provided, as directed by Purchaserhowever, that the Company Meeting shall not be adjourned or postponed to a date later than seven (7) Business Days prior to the Outside Date.
(e6) Vitran Nothing contained in this Section 5.5 shall advise limit in any way the Vitran Subsidiaries and their respective Representatives obligation of the prohibitions set out Company to convene and hold the Company Meeting in Sections 16, 17 accordance with Section 2.3 of this Agreement while this Agreement remains in force and 18 and any violation in no event shall the Company be permitted to put the Superior Proposal to a vote of the restrictions set forth Company Shareholders at the Company Meeting, it being understood that any necessary shareholder vote in these sections respect of a Superior Proposal shall require the Company to duly call and convene a separate meeting of the Company Shareholders.
(7) Subject to its obligations under Section 8.2, nothing in this Agreement shall prevent the Company Board from:
(a) responding, through a directors’ circular or otherwise, only to the extent required by Vitranapplicable Securities Laws, to an Acquisition Proposal for the Vitran Subsidiaries Company, or from making a Company Change in Recommendation as a result of a Material Adverse Effect with respect to the respective Representatives Purchaser;
(b) making any disclosure to the securityholders of the Company if the Company Board, acting in good faith and upon the advice of its legal advisors, shall have first determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Company Board or such disclosure is deemed otherwise required under applicable Laws; or
(c) calling and/or holding a meeting of Company Shareholders requisitioned by Company Shareholders in accordance with the OBCA or taking any other action with respect to be an Acquisition Proposal for the Company to the extent ordered or otherwise mandated by a breach court of these sections by Vitrancompetent jurisdiction in accordance with Laws.
Appears in 1 contract
