Common use of Right to Match Clause in Contracts

Right to Match. (1) Subject to Section 8.2(1), Vasogen covenants that it will not effect a Change of Recommendation unless: (a) Vasogen has complied with its obligations under the other provisions of this Article 8 and has provided the IPC Companies with a copy of the Superior Proposal; and (b) a period (the “Response Period”) of five (5) Business Days shall have elapsed from the date on which the IPC Companies received written notice from the Vasogen Board that the Vasogen Board has determined, subject only to compliance with this Section 8.3, to effect a Change of Recommendation. (2) During the Response Period, the IPC Companies will have the right, but not the obligation, to offer to amend the terms of this Agreement and the Arrangement. The Vasogen Board will review any such proposal by the IPC Companies to amend the terms of this Agreement and the Arrangement, to determine whether the Acquisition Proposal to which the IPC Companies is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed by the IPC Companies to be amended. If the Vasogen Board does not in good faith so determine, the Vasogen Board will reaffirm its recommendation of the Arrangement, as so amended. If the Vasogen Board does in good faith so determine, the Vasogen Board or any committee thereof may effect a Change of Recommendation; provided that Vasogen has complied with the terms and conditions under Section 8.2(3). (3) Vasogen shall ensure that the directors and officers of Vasogen are aware of the provisions of Section 8.2.

Right to Match. (1a) Subject to Section 8.2(1), Vasogen Creston covenants that it will not effect accept, approve, endorse, recommend or enter into a Change binding agreement in respect of Recommendation a Superior Proposal, unless: (ai) Vasogen it has complied with its obligations under Section 6.2 and the other provisions of this Article 8 and 6; and (ii) it has provided Mercator with written notice that the IPC Companies Creston Board has determined that the Acquisition Proposal constitutes a Superior Proposal, and to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Acquisition Proposal and provided Mercator with a copy of any proposed definitive agreement, in each case not less than five calendar days (the Superior Proposal; and"Match Period") prior to the proposed execution of such proposed definitive agreement; (b) a period (the “Response Period”) of five (5) Business Days shall have elapsed from the date on which the IPC Companies received written notice from the Vasogen Board that the Vasogen Board has determined, subject only to compliance with this Section 8.3, to effect a Change of Recommendation. (2) During the Response Match Period, the IPC Companies Mercator will have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement, including, but not limited to, an increase in, or modification of, the aggregate number of Mercator Shares and/or amount of Cash Consideration to be issued to the Creston Shareholders. The Vasogen Board board of directors of Creston will review any such proposal written offer by the IPC Companies Mercator to amend the terms of this Agreement and the ArrangementPlan of Arrangement within three (3) Business Days of receipt of same, in order to determine in good faith whether the Acquisition Proposal to which the IPC Companies Mercator is responding would continue to be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed in writing by the IPC Companies Mercator to be amended. If the Vasogen Board does not board of directors of Creston determines that the Acquisition Proposal no longer constitutes a Superior Proposal, Creston will enter into an amendment to this Agreement with Mercator incorporating the amendments to the Agreement and Plan of Arrangement as set out in good faith so determinethe written offer to amend, the Vasogen Board will and will, within two (2) Business Days of entering into such amendment, reaffirm its recommendation of the ArrangementArrangement and issue a press release to that effect. For greater clarity, as so amendedCreston Board retains its rights under Section 6.2 for any new Acquisition Proposal made after such a reaffirmation. If the Vasogen Board does board of directors of Creston determines in good faith so determinethat the Acquisition Proposal continues to be a Superior Proposal, the Vasogen Creston Board or any committee thereof may effect approve and recommend that Creston Shareholders accept such Superior Proposal and may make a Change of Recommendation; provided in Creston Recommendation or terminate this Agreement pursuant to Section 10.1(e)(iv) in order that Vasogen has complied Creston may enter into an agreement, understanding or arrangement to proceed with the terms and conditions under Section 8.2(3)Superior Proposal. (3c) Vasogen If less than five (5) Business Days before the Meeting, Creston has provided Mercator with a notice under Section 6.2(b), an Acquisition Proposal has been publicly disclosed or announced and the Match Period has not elapsed, then, subject to applicable Laws, at Mercator's request and expense, Creston will postpone or adjourn the Meeting at the Meeting to a date acceptable to Mercator, acting reasonably, which shall not be less than seven (7) days and not more than ten (10) days after the scheduled date of the Meeting and shall, in the event that Mercator and Creston amend the terms of this Agreement pursuant to Section 6.4(b), ensure that the directors and officers details of Vasogen such amended Agreement are aware communicated to the Creston Securityholders at or prior to the resumption of the provisions of Section 8.2adjourned Meeting.

Right to Match. (1) Subject to Section 8.2(1), Vasogen 7.3.1 Brazauro covenants that it will not effect accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Change of Recommendation Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless: (a) Vasogen Brazauro has complied with its obligations under the other provisions of this Article 8 Section 7.2 and has provided the IPC Companies Eldorado with a copy of the Superior Proposal; and (b) a period (the “Response Period”) of five (5) Business Days shall have business days has elapsed from the date that is the later of: (i) the date on which the IPC Companies received Eldorado receives written notice from the Vasogen Brazauro Board that the Vasogen Brazauro Board has determined, subject only to compliance with this Section 8.37.3, to effect accept, approve, endorse, recommend or enter into a Change definitive agreement with respect to such Superior Proposal; and (ii) the date Eldorado receives a copy of Recommendationthe Superior Proposal. (2) 7.3.2 During the Response Period, the IPC Companies Eldorado will have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate consideration. The Vasogen Brazauro Board will shall review any such proposal offer by the IPC Companies Eldorado to amend the terms of this Agreement and the Arrangement, Plan of Arrangement to determine whether the Acquisition Proposal to which the IPC Companies Eldorado is responding would continue to be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed in writing by the IPC Companies Eldorado to be amended. If the Vasogen Brazauro Board does not in good faith so determinedetermines that the Acquisition Proposal no longer constitutes a Superior Proposal, the Vasogen Board Brazauro Board, will cause Brazauro to enter into an amendment to this Agreement with Eldorado 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, as so amendedArrangement and by the prompt issuance of a press release to that effect. If the Vasogen Brazauro Board does determines that the Acquisition Proposal continues to be a Superior Proposal, Brazauro may approve and recommend that holders of Brazauro Shares accept such Superior Proposal and may terminate this Agreement pursuant to Section 8.2.1(d)(i) in good faith so determineorder to accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. 7.3.3 Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the Vasogen Board consideration (or value of such consideration) to be received by the holders of the Brazauro Shares shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Eldorado shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal. 7.3.4 Where at any committee thereof may effect time before the Brazauro Meeting, Brazauro has provided Eldorado with a Change notice under Section 7.3.1 hereof, an Acquisition Proposal has been publicly disclosed or announced, and the Response Period has not elapsed, then, subject to applicable Laws, at Eldorado’s request, Brazauro will postpone or adjourn the Brazauro Meeting at the Brazauro Meeting (but not beforehand without Eldorado’s consent) to a date acceptable to Eldorado, acting reasonably, which shall not be later than ten days after the scheduled date of Recommendation; provided the Brazauro Meeting and shall, in the event that Vasogen has complied with Eldorado and Brazauro amend the terms and conditions under of this Agreement pursuant to Section 8.2(3). (3) Vasogen shall 7.3.2 hereof, ensure that the directors and officers details of Vasogen such amended Agreement are aware communicated to the Brazauro Securityholders prior to the resumption of the provisions of Section 8.2adjourned Brazauro Meeting.

Right to Match. (1) Subject to Section 8.2(1), Vasogen 7.3.1 Claude covenants that it will not effect accept, approve, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Change of Recommendation Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless: (a) Vasogen Claude has complied with its obligations under the other provisions of this Article 8 Section 7.2 and has provided the IPC Companies Acquiror with a copy of the Superior ProposalProposal and all related documentation described in Section 7.2.4; and (b) a period (the “Response Period”) of five (5) Business Days shall have four business days has elapsed from the date that is the later of: (x) the date on which the IPC Companies received Acquiror receives written notice from the Vasogen Claude Board of that the Vasogen Board it has determined, subject only to compliance with this Section 8.37.3, to effect accept, approve, endorse, recommend or enter into a Change binding agreement to proceed with such Superior Proposal; and (y) the date Acquiror receives a copy of Recommendationthe Superior Proposal and all related documents described in Section 7.2.4. (2) 7.3.2 During the Response Period, the IPC Companies Acquiror will have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement, including modification of the Consideration. The Vasogen Claude Board will shall review any such proposal offer by the IPC Companies Acquiror to amend the terms of this Agreement and the Arrangement, Plan of Arrangement to determine whether the Acquisition Proposal to which the IPC Companies Acquiror is responding would continue to be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed in writing by the IPC Companies Acquiror to be amended. If the Vasogen Claude Board does not in good faith so determinedetermines 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 Acquiror, the Vasogen Claude Board will cause it to enter into an amendment to this Agreement with Acquiror 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, as so amendedArrangement by the prompt issuance of a press release to that effect. If the Vasogen Claude Board does determines that the Acquisition Proposal continues to be a Superior Proposal, it may recommend that holders of its securities accept such Superior Proposal provided that before doing so it terminates this Agreement and pays the Termination Fee pursuant to Section 8.2.1(d)(ii), in good faith so determineorder to accept or enter into an agreement, understanding or arrangement to proceed with the Superior Proposal. 7.3.3 Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the Vasogen Board consideration (or any committee thereof may effect value of such consideration) to be received by the holders of Claude’s securities shall constitute a Change new Acquisition Proposal for the purposes of Recommendation; provided that Vasogen has complied with this Section 7.3 and Acquiror shall be afforded a new Response Period and the terms and conditions under Section 8.2(3)rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal. (3) Vasogen shall ensure that the directors and officers of Vasogen are aware of the provisions of Section 8.2.

Right to Match. (1) Subject to Section 8.2(17.2(2), Vasogen Hummingbird covenants that it will not effect accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of a Change of Recommendation Superior Proposal (other than a confidentiality agreement permitted by Section 7.1(4)) unless: (a) Vasogen Hummingbird has complied with its obligations under Section 7.1 and the other provisions of this Article 8 7 and has provided the IPC Companies Parent with a copy of all material documentation and a summary of any material oral or other communications relating to the Superior Proposal; andProposal (the “Superior Proposal Information”); (b) a period (the “Response Period”) of five (5) Business Days business days shall have elapsed from the date on which Parent received both the IPC Companies received Superior Proposal Information together with written notice from the Vasogen Board of Directors of Hummingbird that the Vasogen Board has of Directors of Hummingbird determined, subject only to compliance with this Section 8.37.2, to effect accept, approve, recommend or enter into a Change binding agreement to proceed with the Superior Proposal Information; and (c) if the Response Period would not terminate on or before the date fixed for the Meeting, Hummingbird shall, upon the written request of RecommendationParent, adjourn the Meeting to a date selected by Parent that is not less than two nor more than 20 business days after the expiration of the Response Period. (2) During the Response Period, the IPC Companies Parent will have the right, but not the obligation, to offer to amend the terms of this Agreement and the ArrangementTransactions. The Vasogen Board of Directors of Hummingbird will review any such proposal by the IPC Companies Parent to amend the terms of this Agreement and the ArrangementTransactions, including an increase in, or modification of, the consideration to be received by the holders of Hummingbird Shares, to determine whether the Acquisition Proposal to which the IPC Companies Parent is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement Transactions as it is proposed by the IPC Companies Parent to be amended. If the Vasogen Board of Directors of Hummingbird does not in good faith so determine, the Vasogen Board of Directors of Hummingbird will promptly reaffirm its recommendation of the Arrangement, Transactions as so amendedamended and Hummingbird will not implement the proposed Superior Proposal. If the Vasogen Board of Directors of Hummingbird does in good faith so determine, Hummingbird may on termination of this Agreement in accordance with Section 8.2(1)(g) and payment of the Vasogen Board fee to Parent pursuant to Section 7.3, approve, recommend, accept or any committee thereof may effect a Change of Recommendation; provided that Vasogen has complied enter into an agreement, understanding or arrangement to proceed with the terms and conditions under Section 8.2(3)Superior Proposal. (3) Vasogen 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 holders of Hummingbird Shares shall ensure that constitute a new Acquisition Proposal for the directors purposes of this Section 7.2 and officers Parent shall be afforded a new Response Period in respect of Vasogen are aware of the provisions of Section 8.2each such Acquisition Proposal.

Right to Match. (1a) Subject to Section 8.2(16.1(c), Vasogen the Company covenants that it will not effect a Change of Recommendation unless: (ai) Vasogen the Company has complied with its obligations under the other provisions of this Article 8 6 and has provided the IPC Companies Parent with a copy of the Superior Proposal; and (bii) a period (the “Response Period”) of five (5) Business Days shall have elapsed from the date on which the IPC Companies Parent received written notice from the Vasogen Board that the Vasogen Board has determined, subject only to compliance with this Section 8.36.2, to effect a Change of Recommendation. (2b) During the Response Period, the IPC Companies Parent will have the right, but not the obligation, to offer to amend the terms of this Agreement and the Arrangement. The Vasogen Board will review any such proposal by the IPC Companies Parent to amend the terms of this Agreement and the Arrangement, including an increase in, or modification of, the consideration to be received by the Shareholders, to determine whether the Acquisition Proposal to which the IPC Companies Parent is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed by the IPC Companies Parent to be amended. If the Vasogen Board does not in good faith so determine, the Vasogen Board will reaffirm its recommendation of the Arrangement, as so amended. If the Vasogen Board does in good faith so determine, the Vasogen Board or any committee thereof may effect a Change of Recommendation; provided that Vasogen the Company has complied with the terms and conditions under Section 8.2(36.1(e). (3c) Vasogen 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 Shareholders shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 and Parent shall be afforded a new Response Period in respect of each such Acquisition Proposal. (d) The Company shall ensure that the directors and officers of Vasogen the Company and its other Representatives are aware of the provisions of Section 8.2Sections 6.1 and the Company shall be responsible for any breach of Sections 6.1 by such Representatives.

Right to Match. 5.7.1. The Fund shall not accept, approve, recommend or enter into any agreement in respect of an Acquisition Proposal (1other than a Standard Confidentiality Agreement to the extent permitted by Section 5.6.1) Subject to Section 8.2(1), Vasogen covenants that unless (i) it will not effect a Change of Recommendation unless: (a) Vasogen has complied with its obligations under the other provisions of this Article 8 and has provided the IPC Companies IESI with a copy of the Acquisition Proposal document which the Trustees have determined would be a Superior Proposal; and , and (bii) a period (the “Response Period”) of five (5) ten Business Days shall have elapsed from the later of the date on which the IPC Companies IESI received written notice from of the Vasogen Board that Trustees’ proposed determination to accept, approve, recommend or enter into an agreement in respect of such Acquisition Proposal, and the Vasogen Board has determined, subject only to compliance with this Section 8.3, to effect date IESI receives a Change copy of Recommendationthe Acquisition Proposal. (2) 5.7.2. During the Response Periodsuch ten Business Day period, the IPC Companies will Fund acknowledges that IESI shall have the rightopportunity, but not the obligation, to offer propose to amend the terms of this Agreement and the ArrangementTransactions. The Vasogen Board Trustees will review any such proposal by the IPC Companies IESI to amend the terms of this Agreement and in good faith in order to determine, in its discretion in the Arrangementexercise of its fiduciary duties, to determine whether IESI’s proposal upon acceptance by the Fund would result in the Acquisition Proposal to which the IPC Companies is responding would be no longer being a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed by the IPC Companies to be amendedProposal. If the Vasogen Board does not in good faith Trustees so determine, the Vasogen Board Fund will reaffirm its recommendation of the Arrangement, as so amendedenter into an amended agreement with IESI reflecting IESI’s amended proposal. If the Vasogen Board does Trustees continue to believe, in good faith so determineand after consultation with financial advisors and outside counsel that the Acquisition Proposal is nonetheless a Superior Proposal and therefore rejects IESI’s amended proposal, the Vasogen Board or Fund will be entitled to provide notice to IESI that it is terminating this Agreement pursuant to Section 8.2.5 upon payment by the Fund to IESI of the Break-up Fee. 5.7.3. The Fund also acknowledges and agrees that each successive modification of any committee thereof may effect Acquisition Proposal shall constitute a Change new Acquisition Proposal for purposes of Recommendation; provided that Vasogen has complied with the terms and conditions requirement under Section 8.2(3)5.7.2 to initiate an additional ten Business Day notice period. (3) Vasogen shall ensure that the directors and officers of Vasogen are aware of the provisions of Section 8.2.

Right to Match. (1a) Subject to Section 8.2(17.3(b), Vasogen Badger covenants that it will not effect accept, approve, recommend or enter into any agreement, understanding, arrangement or Contract in respect of a Change of Recommendation Superior Proposal (other than a confidentiality agreement permitted by Section 7.2(d)) unless: (ai) Vasogen Badger has complied with its obligations under Section 7.2 and the other provisions of this Article 8 VII and has provided the IPC Companies Parent with a copy of the Superior Proposal; and (bii) a period (the “Response Period”) of five (5) Business Days shall will have elapsed from the date on which the IPC Companies Parent received written notice from the Vasogen Board of Directors of Badger that the Vasogen Board has of Directors of Badger determined, subject only to compliance with this Section 8.37.3, to effect accept, approve, recommend or enter into a Change binding agreement to proceed with the Superior Proposal. In the event that Badger provides Parent with the notice contemplated in this Section on a date that is less than five Business Days prior to the Badger Meeting, Badger will be entitled to adjourn the Badger Meeting to a date that is not more than five Business Days after the date of Recommendationsuch notice. (2b) During the first three Business Days of the Response Period, the IPC Companies Parent will have the right, but not the obligation, to offer to amend the terms of this Agreement and the ArrangementAgreement. The Vasogen Board of Directors of Badger will review any such proposal by the IPC Companies Parent to amend the terms of this Agreement and Agreement, including an increase in, or modification of, the Arrangementconsideration to be received by the Badger Shareholders, to determine whether the Acquisition Proposal to which the IPC Companies Parent is responding would be a Superior Proposal when assessed against this Agreement and the Arrangement as it is proposed by the IPC Companies Parent to be amended. If the Vasogen Board does not in good faith of Directors of Badger determines that the Acquisition Proposal would no longer be a Superior Proposal if the Arrangement was so determineamended and Parent and Purchaser enter into an amendment to this Agreement incorporating the terms of the amended offer, the Vasogen Board of Directors of Badger will promptly publicly reaffirm its recommendation of the Arrangement, as so amended. If the Vasogen Board does of Directors of Badger determines, in good faith so determineafter consultation with its financial advisors and its outside counsel, that the Vasogen Board Acquisition Proposal continues to be a Superior Proposal, Badger may approve, recommend, accept or any committee thereof may effect a Change of Recommendation; provided that Vasogen has complied enter into an agreement, understanding or arrangement to proceed with the terms and conditions under Section 8.2(3)Superior Proposal. (3c) Vasogen 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 Badger Shareholders will constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Parent will be afforded a new Response Period in respect of each such Acquisition Proposal. (d) Badger shall use its commercially reasonable efforts to ensure that the directors and officers of Vasogen Badger and each of its Subsidiaries and any investment bankers, counsel or other advisors, representatives or agents retained by Badger are aware of of, and abide by, the provisions of Section 8.2Sections 7.2 and 7.3.