Right to Match. (a) Notwithstanding Section 6.1 or any other provision of this Agreement, if after the date hereof the Company or any of the Company Entities, or any of its or their respective Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that did not result from a breach of Section 6.1 by the Company or the Company Entities, the Company and its Representatives may: (i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal; and (ii) if the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties, the Company, the Company Entities and their Representatives may: A. furnish information with respect to the Company and the Company Entities to the person making such Acquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representatives; and B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives. (b) Notwithstanding Section 6.1 or any other provision of this Agreement, the Company may, at any time after the date of this Agreement and prior to the Company Meeting, terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality and standstill agreement described in Section 6.2, the execution of which shall not be subject to the conditions of this Section 6.2 (b)) if and only if: (i) such Acquisition Proposal did not result from a breach of Section 6.1 and the Company has complied with the other terms of this Section 6.2; (ii) the Board of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to take the relevant action would be inconsistent with its fiduciary duties; (iii) the Company has (A) given written notice to the Purchaser of the determination of the Board of Directors that such Acquisition Proposal constitutes a Superior Proposal and that the Board of Directors intends to withdraw, modify, qualify or change in a manner adverse to the Purchaser or the Parent its approval or recommendation of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counsel, determined should be ascribed to any non-cash consideration included in such Acquisition Proposal); (iv) a period of least five full Business Days (such five Business Day Period, the “Right to Match Period”) shall have elapsed from 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 documents referred to in clause (B) of Section 6.2(b)(iii), it being understood that the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at the end of the fifth full Business Day following such later date; (v) if the Purchaser and the Parent have offered to amend the terms of this Agreement and the Arrangement during the Right to Match Period pursuant to Section 6.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period; and (vi) the Company terminates this Agreement pursuant to Section 7.1(d)(i) and pays the Termination Payment pursuant to Section 7.2(e)(iii). (c) During the Right to Match Period, the Purchaser and the Parent will have the opportunity, but not the obligation, to offer to amend the terms of this Agreement and the Arrangement. The Company agrees that, if requested by the Purchaser, it will negotiate with the Purchaser and the Parent in good faith to make such amendments to the terms of this Agreement and the Arrangement as would enable it to proceed with the transactions contemplated hereby on such amended terms. The Board of Directors will review in good faith any such offer made by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement and the Arrangement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. If the Board of Directors determines that the applicable Acquisition Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period, the Company will forthwith so advise the Purchaser and the Parent and will promptly thereafter accept the offer by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement and the Parties agree to take such actions and execute such documents as are necessary to give effect to the foregoing. (d) The Board of Directors shall reaffirm its recommendation in favour of the Arrangement by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal. (e) Each successive material amendment, change or 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 Shareholders or other material terms and conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 and shall result in the commencement of a new Right to Match Period from the date specified in Section 6.2(b)(iv) with respect to such new Acquisition Proposal. If the Company provides the Purchaser with a Superior Proposal Notice on a date that is less than five Business Days prior to the Company Meeting, the Company shall adjourn the Company Meeting to a date that is not later than the tenth Business Day following the first day of the Right to Match Period. The Company shall not be under any obligation to hold the Company Meeting following the termination of this Agreement. (f) The Company shall ensure that each of the Company Entities, and each of its and their respective Representatives, is aware of the provisions of Section 6.1 and this Section 6.2 and the Company shall be responsible for any breach of Section 6.1 or this Section 6.2 by such persons.
Appears in 1 contract
Right to Match. (a1) Notwithstanding Section 6.1 or any other provision of this Agreement, if after the date hereof If the Company or any of the receives an Company Entities, or any of its or their respective Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition that constitutes a Company Superior Proposal made prior to obtaining the date hereof) that did not result from a breach of Section 6.1 by the Company or the Company EntitiesRequired Approval, the Company Board may make a Company Change in Recommendation and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties, the Company, the Company Entities and their Representatives may:
A. furnish information with respect to the Company and the Company Entities to the person making such Acquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representatives; and
B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1 or any other provision of this Agreement, the Company may, at any time after the date of this Agreement and prior to the Company Meeting, terminate this Agreement and accept, approve, recommend or enter into any agreementa definitive agreement with respect to such Company Superior Proposal, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality and standstill agreement described in Section 6.2, the execution of which shall not be subject to the conditions of this Section 6.2 (b)) if and only if:
(ia) such Acquisition Proposal did not result from a breach of Section 6.1 and the Person making the Company has complied with the other terms of this Section 6.2Superior Proposal was not restricted from making such Company Superior Proposal pursuant to an existing confidentiality, standstill use, business purpose or similar restriction;
(iib) the Board Company Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that violation by the failure to take the relevant action would be inconsistent with its fiduciary dutiesCompany of this Article 5;
(iiic) the Company has (A) given written notice delivered to the Purchaser a written notice of the determination of the Company Board of Directors that such Company Acquisition Proposal constitutes a Company Superior Proposal and of the intention of the Company Board to make a Company Change in Recommendation and/or enter into such definitive agreement promptly following the making of such determination, together with a written notice from the Company Board regarding the value and financial terms that the Board of Directors intends to withdrawCompany Board, modify, qualify or change in a manner adverse to the Purchaser or the Parent its approval or recommendation of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counseladvisors, has determined should be ascribed to any non-cash consideration included in offered under such Company Acquisition ProposalProposal (the “Company Superior Proposal Notice”);
(ivd) the Company or its Representatives has provided the Purchaser a period copy of the proposed definitive agreement for the Company 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);
(e) at least five full (5) Business Days (such five Business Day Period, the “Right to Match Matching Period”) shall have elapsed from the date that is the later of the date on which the Purchaser received the Company Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the documents referred to in clause (B) of Section 6.2(b)(iii), it being understood that proposed definitive agreement for the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at Company Superior Proposal from the end of the fifth full Business Day following such later dateCompany;
(vf) if during any Matching Period, the Purchaser has 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 in order for such Company Acquisition Proposal to cease to be a Company Superior Proposal; and
(g) the Company Board has determined, in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Company Acquisition Proposal remains a Company Superior Proposal as compared to the Arrangement as proposed to be amended by the Purchaser and that it is necessary for the Parent have offered Company Board to cause the Company to enter into a definitive agreement with respect to such Company Superior Proposal in order to satisfy their fiduciary duties to the Company;
(h) 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 Voting Support and Lock-Up 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 the Voting Support and Lock-Up Agreements; and
(i) the Company concurrently terminates this Agreement pursuant to Section 7.2(1)(c)(iii).
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Company 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 during in good faith in order to determine whether such proposal would, upon acceptance, result in the Right to Match Period pursuant to Section 6.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Company Acquisition Proposal continues previously constituting a Company Superior Proposal ceasing to be a Company Superior Proposal when assessed against this Agreement Proposal; and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period; and
(vib) the Company terminates this Agreement pursuant to Section 7.1(d)(i) shall, and pays the Termination Payment pursuant to Section 7.2(e)(iii).
(c) During the Right to Match Periodshall cause its Representatives to, the Purchaser and the Parent will have the opportunity, but not the obligation, to offer to amend the terms of this Agreement and the Arrangement. The Company agrees that, if requested by the Purchaser, it will negotiate in good faith with the Purchaser and the Parent in good faith to make such amendments to the terms of this Agreement and the Arrangement as would enable it the Purchaser to proceed with the transactions contemplated hereby by this Agreement on such amended terms. The Board Company agrees that, subject to the Company’s disclosure obligations under applicable Securities Laws, the fact of Directors will review in good faith the making of, and each of the terms of, any such offer proposed amendments shall be kept strictly confidential and shall not be disclosed to any Person (including without limitation, the Person having made by the Purchaser and Company Superior Proposal), other than the Parent to amend Company’s Representatives, without the terms of this Agreement and the Arrangement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement and the Arrangement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match PeriodPurchaser’s prior written consent. If the Company Board of Directors determines that the applicable such Company Acquisition Proposal would cease to be a Company Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match PeriodProposal, the Company will forthwith shall promptly so advise the Purchaser and the Parent Company and will promptly thereafter accept the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser Purchaser, and the Parent shall take and cause to amend the terms of this Agreement and the Arrangement and the Parties agree to take be taken all such actions and execute such documents as are necessary to give effect to the foregoing.
(d) The Board of Directors shall reaffirm its recommendation in favour of the Arrangement by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e3) Each successive material amendment, change amendment or modification to any Company Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms and or conditions thereof shall constitute a new Company Acquisition Proposal for the purposes of this Section 6.2 5.4, and the Purchaser shall result in the commencement of be afforded a new Right to Match five (5) Business Day Matching Period from the later of the date specified on which the Purchaser received the Company Superior Proposal Notice and a copy of the proposed definitive agreement for the new Company Superior Proposal from the Company.
(4) The Company Board shall promptly reaffirm the Company Board Recommendation by press release after any Company Acquisition Proposal which is not determined to be a Company Superior Proposal is publicly announced or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.4(2) would result in Section 6.2(b)(iv) an Company Acquisition Proposal no longer being a Company Superior Proposal. The Company shall provide the Purchaser and its outside legal counsel with respect a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such new Acquisition Proposal. press release as requested by the Purchaser and its counsel.
(5) If the Company provides the Purchaser with a Company Superior Proposal Notice on to the Purchaser after a date that is less than five ten (10) Business Days prior to before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting Meeting, as directed by the Purchaser acting reasonably, to a date that is not later more than ten (10) Business Days after the tenth Business Day following the first day scheduled date of the Right Company Meeting, but in any event to Match Period. The a date that is not less than five (5) Business Days prior to the Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company shall not be under any obligation to convene and hold the Company Meeting following the termination in accordance with Section 2.3 of this AgreementAgreement while this Agreement remains in force.
(f7) The Nothing contained in this Agreement shall prevent the Company Board from (i) 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 a Company Acquisition Proposal that is not a Company Superior Proposal, or (ii) making any public disclosure to the Company Shareholders if the Company Board, acting in good faith and after consultation with its outside legal advisors, shall ensure have first determined that each the failure to make such disclosure would be inconsistent with the fiduciary duties of the Company EntitiesBoard, and provided however, in each of its and their respective Representativescase that, is aware of the provisions of Section 6.1 and this Section 6.2 and notwithstanding that the Company Board shall be responsible for any breach of permitted to make such disclosure, the Company Board shall not be permitted to make a Company Change in Recommendation, other than as permitted by Section 6.1 or this Section 6.2 by such persons5.4(1).
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. (a) Notwithstanding Section 6.1 6.1(a) or any other provision of this AgreementAgreement to the contrary, if after the date hereof the Company or any of the Company Entities, or any of its or their respective Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that did was not result from a breach solicited after the date hereof in contravention of Section 6.1 by the Company or the Company Entities6.1, the Company and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected expect to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties, the Company, the Company Entities and their Representatives may:
A. furnish information with respect to the Company and the Company Entities to the person making such Acquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representatives; and
B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1 6.1(a) or any other provision of this AgreementAgreement to the contrary notwithstanding, the Company may, at any time after the date of this Agreement and prior to the Company Meeting, terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality and standstill agreement described in Section 6.26.2(a), the execution of which shall not be subject to the conditions of this Section 6.2 (b6.2(b)) if and only if:
(i) such Acquisition Proposal did not result from a breach of Section 6.1 and the Company has complied with the other terms of this Section 6.2;
(ii) the Board of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to lead to constitute a Superior Proposal and that the failure to take the relevant action would be inconsistent conflict with its fiduciary duties;
(iii) the Company has (A) given written notice to the Purchaser of the determination of the Board of Directors that such Acquisition Proposal constitutes a Superior Proposal and that the Board of Directors intends to withdraw, modify, qualify or change in a manner adverse to the Purchaser or the Parent its approval or recommendation of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counsel, determined should be ascribed to any non-cash consideration included in such Acquisition Proposal);
(iv) a period of least five full Business Days (such five Business Day Period, the “Right to Match Period”) shall have elapsed from 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 documents referred to in clause (B) of Section 6.2(b)(iii), it being understood that the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at the end of the fifth full Business Day following such later date;
(v) if the Purchaser and the Parent have offered to amend the terms of this Agreement and the Arrangement during the Right to Match Period pursuant to Section 6.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period; and
(vi) the Company terminates this Agreement pursuant to Section 7.1(d)(i) and pays the Termination Payment pursuant to Section 7.2(e)(iii7.2(b)(iii).
(c) During the Right to Match Period, the Purchaser and the Parent will have the opportunity, but not the obligation, to offer to amend the terms of this Agreement and the Arrangement. The Company agrees that, if requested by the Purchaser, it will negotiate with the Purchaser and the Parent in good faith to make such amendments to the terms of this Agreement and the Arrangement as would enable it to proceed with the transactions contemplated hereby on such amended terms. The Board of Directors will review in good faith any such offer made by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement and the Arrangement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. If the Board of Directors determines that the applicable Acquisition Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period, the Company will forthwith so advise the Purchaser and the Parent and will promptly thereafter accept the offer by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement and the Parties agree to take such actions and execute such documents as are necessary to give effect to the foregoing.
(d) The Board of Directors shall reaffirm its recommendation in favour of the Arrangement by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e) Each successive material amendment, change or 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 Shareholders or other material terms and conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 and shall result in the commencement of a new Right to Match Period from the date specified in Section 6.2(b)(iv) with respect to such new Acquisition Proposal. If the Company provides the Purchaser with a Superior Proposal Notice on a date that is less than five Business Days prior to the Company Meeting, the Company shall adjourn the Company Meeting to a date that is not later than the tenth Business Day following the first day of the Right to Match Period. The Company shall not be under any obligation to hold the Company Meeting following the termination of this Agreement.
(f) The Company shall ensure that each of the Company Entities, and each of its and their respective Representatives, is aware of the provisions of Section 6.1 and this Section 6.2 and the Company shall be responsible for any breach of Section 6.1 or this Section 6.2 by such persons.
Appears in 1 contract
Right to Match. (a) Notwithstanding Section 6.1 7.1 or any other provision of this Agreement, if after the date hereof the Company or any of the Company Entities, or any of its or their respective Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that did not result from a breach of Section 6.1 7.1 by the Company or the Company Entities, the Company and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties, the Company, the Company Entities and their Representatives may:
A. furnish information with respect to the Company and the Company Entities to the person making such Acquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent Purchaser or their respective Representatives; and
B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1 7.1 or any other provision of this Agreement, the Company may, at any time after the date of this Agreement and prior to the Company Meeting, terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality and standstill agreement described in Section 6.27.2, the execution of which shall not be subject to the conditions of this Section 6.2 (b7.2(b)) if and only if:
(i) such Acquisition Proposal did not result from a breach of Section 6.1 7.1 and the Company has complied with the other terms of this Section 6.27.2;
(ii) the Board of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to take the relevant action would be inconsistent with its fiduciary duties;
(iii) the Company has (A) given written notice to the Purchaser of the determination of the Board of Directors that such Acquisition Proposal constitutes a Superior Proposal and that the Board of Directors intends to withdraw, modify, qualify or change in a manner adverse to the Purchaser or the Parent transactions contemplated herein its approval or recommendation of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counsel, determined should be ascribed to any non-cash consideration included in such Acquisition Proposal);
(iv) a period of least five full Business Days (such five Business Day Period, the “Right to Match Period”) shall have elapsed from 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 documents referred to in clause (B) of Section 6.2(b)(iii7.2(b)(iii), it being understood that the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at the end of the fifth full Business Day following such later date;
(v) if the Purchaser and the Parent have has offered to amend the terms of this Agreement and the Arrangement during the Right to Match Period pursuant to Section 6.2(c7.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period; and
(vi) the Company terminates this Agreement pursuant to Section 7.1(d)(i8.1(d)(i) and pays the Termination Payment Fee pursuant to Section 7.2(e)(iii8.2(a).
(c) During the Right to Match Period, the Purchaser and the Parent will have the opportunity, but not the obligation, to offer to amend the terms of this Agreement and the Arrangement. The Company agrees that, if requested by the Purchaser, it will negotiate with the Purchaser and the Parent in good faith to make such amendments to the terms of this Agreement and the Arrangement as would enable it to proceed with the transactions contemplated hereby on such amended terms. The Board of Directors will review in good faith any such offer made by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement and the Arrangement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. If the Board of Directors determines that the applicable Acquisition Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period, the Company will forthwith so advise the Purchaser and the Parent and will promptly thereafter accept the offer by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement and the Parties agree to take such actions and execute such documents as are necessary to give effect to the foregoing.
(d) The Board of Directors shall reaffirm its recommendation in favour of the Arrangement by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e) Each successive material amendment, change or 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 Shareholders or other material terms and conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 7.2 and shall result in the commencement of a new Right to Match Period from the date specified in Section 6.2(b)(iv7.2(b)(iv) with respect to such new Acquisition Proposal. If the Company provides the Purchaser with a Superior Proposal Notice on a date that is less than five Business Days prior to the Company Meeting, the Company shall adjourn the Company Meeting to a date that is not later than the tenth Business Day following the first day of the Right to Match Period. The Company shall not be under any obligation to hold the Company Meeting following the termination of this Agreement.
(f) The Company shall ensure that each of the Company Entities, and each of its and their respective Representatives, is aware of the provisions of Section 6.1 7.1 and this Section 6.2 7.2 and the Company shall be responsible for any breach of Section 6.1 7.1 or this Section 6.2 7.2 by such persons.
Appears in 1 contract
Right to Match. (a1) Notwithstanding Section 6.1 or any other provision of this Agreement, if after the date hereof If the Company or any of the receives an Company Entities, or any of its or their respective Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition that constitutes a Company Superior Proposal made prior to obtaining the date hereof) that did not result from a breach of Section 6.1 by the Company or the Company EntitiesRequired Approval, the Company Board may make a Company Change in Recommendation and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties, the Company, the Company Entities and their Representatives may:
A. furnish information with respect to the Company and the Company Entities to the person making such Acquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representatives; and
B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1 or any other provision of this Agreement, the Company may, at any time after the date of this Agreement and prior to the Company Meeting, terminate this Agreement and accept, approve, recommend or enter into any agreementa definitive agreement with respect to such Company Superior Proposal, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality and standstill agreement described in Section 6.2, the execution of which shall not be subject to the conditions of this Section 6.2 (b)) if and only if:
(ia) such Acquisition Proposal did not result from a breach of Section 6.1 and the Person making the Company has complied with the other terms of this Section 6.2Superior Proposal was not restricted from making such Company Superior Proposal pursuant to an existing confidentiality, standstill use, business purpose or similar restriction;
(iib) the Board Company Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that violation by the failure to take the relevant action would be inconsistent with its fiduciary dutiesCompany of this Article 5;
(iiic) the Company has (A) given written notice delivered to the Purchaser a written notice of the determination of the Company Board of Directors that such Company Acquisition Proposal constitutes a Company Superior Proposal and of the intention of the Company Board to make a Company Change in Recommendation and/or enter into such definitive agreement promptly following the making of such determination, together with a written notice from the Company Board regarding the value and financial terms that the Board of Directors intends to withdrawCompany Board, modify, qualify or change in a manner adverse to the Purchaser or the Parent its approval or recommendation of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counseladvisors, has determined should be ascribed to any non-cash consideration included in offered under such Company Acquisition ProposalProposal (the “Company Superior Proposal Notice”);
(ivd) the Company or its Representatives has provided the Purchaser a period copy of the proposed definitive agreement for the Company 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);
(e) at least five full (5) Business Days (such five Business Day Period, the “Right to Match Matching Period”) shall have elapsed from the date that is the later of the date on which the Purchaser received the Company Superior Proposal Notice from the Company and the date on which the Purchaser received a copy of the documents referred to in clause (B) of Section 6.2(b)(iii), it being understood that proposed definitive agreement for the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at Company Superior Proposal from the end of the fifth full Business Day following such later dateCompany;
(vf) if during any Matching Period, the Purchaser has 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 in order for such Company Acquisition Proposal to cease to be a Company Superior Proposal; and
(g) the Company Board has determined, in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Company Acquisition Proposal remains a Company Superior Proposal as compared to the Arrangement as proposed to be amended by the Purchaser and that it is necessary for the Parent have offered Company Board to cause the Company to enter into a definitive agreement with respect to such Company Superior Proposal in order to satisfy their fiduciary duties to the Company;
(h) 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 Voting Support and Lock-Up 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 the Voting Support and Lock-Up Agreements; and
(i) the Company concurrently terminates this Agreement pursuant to Section 7.2(1)(c)(iii).
(2) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Company 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 during in good faith in order to determine whether such proposal would, upon acceptance, result in the Right to Match Period pursuant to Section 6.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Company Acquisition Proposal continues previously constituting a Company Superior Proposal ceasing to be a Company Superior Proposal when assessed against this Agreement Proposal; and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period; and
(vib) the Company terminates this Agreement pursuant to Section 7.1(d)(i) shall, and pays the Termination Payment pursuant to Section 7.2(e)(iii).
(c) During the Right to Match Periodshall cause its Representatives to, the Purchaser and the Parent will have the opportunity, but not the obligation, to offer to amend the terms of this Agreement and the Arrangement. The Company agrees that, if requested by the Purchaser, it will negotiate in good faith with the Purchaser and the Parent in good faith to make such amendments to the terms of this Agreement and the Arrangement as would enable it the Purchaser to proceed with the transactions contemplated hereby by this Agreement on such amended terms. The Board Company agrees that, subject to the Company’s disclosure obligations under applicable Securities Laws, the fact of Directors will review in good faith the making of, and each of the terms of, any such offer proposed amendments shall be kept strictly confidential and shall not be disclosed to any Person (including without limitation, the Person having made by the Purchaser and Company Superior Proposal), other than the Parent to amend Company’s Representatives, without the terms of this Agreement and the Arrangement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement and the Arrangement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match PeriodPurchaser’s prior written consent. If the Company Board of Directors determines that the applicable such Company Acquisition Proposal would cease to be a Company Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match PeriodProposal, the Company will forthwith shall promptly so advise the Purchaser and the Parent Company and will promptly thereafter accept the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser Purchaser, and the Parent shall take and cause to amend the terms of this Agreement and the Arrangement and the Parties agree to take be taken all such actions and execute such documents as are necessary to give effect to the foregoing.
(d) The Board of Directors shall reaffirm its recommendation in favour of the Arrangement by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e) Each successive material amendment, change or 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 Shareholders or other material terms and conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 and shall result in the commencement of a new Right to Match Period from the date specified in Section 6.2(b)(iv) with respect to such new Acquisition Proposal. If the Company provides the Purchaser with a Superior Proposal Notice on a date that is less than five Business Days prior to the Company Meeting, the Company shall adjourn the Company Meeting to a date that is not later than the tenth Business Day following the first day of the Right to Match Period. The Company shall not be under any obligation to hold the Company Meeting following the termination of this Agreement.
(f) The Company shall ensure that each of the Company Entities, and each of its and their respective Representatives, is aware of the provisions of Section 6.1 and this Section 6.2 and the Company shall be responsible for any breach of Section 6.1 or this Section 6.2 by such persons.
Appears in 1 contract
Right to Match. (a1) Notwithstanding Section 6.1 or any other provision of this Agreement, if after the date hereof If the Company or any of the Company Entities, or any of its or their respective Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that did not result from a breach of Section 6.1 by the Company or the Company Entities, the Company and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, constitutes a Superior Proposal and that prior to obtaining the failure to take the relevant action would conflict with its fiduciary dutiesRequired Approval, the Company, the Company Entities Board may make a Change in Recommendation and their Representatives may:
A. furnish information with respect to the Company and the Company Entities to the person making such Acquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representatives; and
B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1 or any other provision of this Agreement, the Company may, at any time after the date of this Agreement and prior to the Company Meeting, terminate this Agreement and accept, approve, recommend or enter into any agreementa definitive agreement with respect to such Superior Proposal, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality and standstill agreement described in Section 6.2, the execution of which shall not be subject to the conditions of this Section 6.2 (b)) if and only if:
(ia) the Person making the Superior Proposal was not restricted from making such Acquisition Superior Proposal did not result from a breach of Section 6.1 and the Company has complied with the other terms of this Section 6.2pursuant to an existing confidentiality, standstill use, business purpose or similar restriction;
(iib) the Board Acquisition Proposal, inquiry, proposal, offer or request did not arise, directly or indirectly, as a result of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes a violation by the Company of this Article 5 or could reasonably be expected to lead to a Superior Proposal and that the failure to take the relevant action would be inconsistent with its fiduciary dutiesExclusivity Agreement;
(iiic) the Company has (A) given written notice delivered to the Purchaser a written notice of the determination of the Board of Directors 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 and financial terms that the Board of Directors intends to withdrawBoard, modify, qualify or change in a manner adverse to the Purchaser or the Parent its approval or recommendation of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counseladvisors, has determined should be ascribed to any non-cash consideration included in offered under such Acquisition ProposalProposal (the “Superior Proposal Notice”);
(ivd) the Company or its Representatives has provided the Purchaser a period copy of the proposed definitive agreement for the Superior Proposal;
(e) at least five full (5) Business Days (such five Business Day Period, the “Right to Match 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 of the documents referred to in clause (B) of Section 6.2(b)(iii), it being understood that proposed definitive agreement for the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at Superior Proposal from the end of the fifth full Business Day following such later dateCompany;
(vf) if during any Matching Period, the Purchaser and has had the Parent have offered opportunity (but not the obligation), in accordance with Section 5.4(2), to offer to amend the terms of this Agreement and the Arrangement during in order for such Acquisition Proposal to cease to be a Superior Proposal;
(g) after the Right to Match Period pursuant to Section 6.2(c)Matching Period, the Board of Directors has determineddetermined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to be constitute a Superior Proposal when assessed against this Agreement and (and, if applicable, compared to the terms of the Arrangement as they are proposed to be amended as at by the termination of Purchaser under Section 5.4(2));
(h) the Right Board has determined, in good faith, after consultation with the Company’s outside legal counsel that it is necessary for the Board to Match Periodenter into a definitive agreement with respect to such Superior Proposal in order to satisfy their fiduciary duties to the Company; and
(vii) such Superior Proposal does not require the Company terminates 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 7.1(d)(i) the Support and pays the Termination Payment pursuant to Section 7.2(e)(iii)Voting Agreements.
(c2) During the Right to Match Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Board shall review any offer made by the Purchaser and the Parent will have the opportunity, but not the obligation, to offer under Section 5.4(1)(f) to amend the terms of this Agreement and the Arrangement. The Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) the Company agrees thatshall, if requested by the Purchaserand shall cause its Representatives to, it will negotiate in good faith with the Purchaser and the Parent in good faith to make such amendments to the terms of this Agreement and the Arrangement as would enable it the Purchaser to proceed with the transactions contemplated hereby by this Agreement on such amended terms. The Board of Directors will review in good faith any such offer made by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement and the Arrangement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. If the Board of Directors determines that the applicable such Acquisition Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match PeriodProposal, the Company will forthwith shall promptly so advise the Purchaser and the Parent Company and will promptly thereafter accept the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser Purchaser, and the Parent shall take and cause to amend the terms of this Agreement and the Arrangement and the Parties agree to take be taken all such actions and execute such documents as are necessary to give effect to the foregoing.
(d) The Board of Directors shall reaffirm its recommendation in favour of the Arrangement by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e3) Each successive material amendment, change amendment or 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 Company Common Shareholders or other material terms and or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 5.4, and the Purchaser shall result in the commencement of be afforded a new Right to Match five (5) Business Day Matching Period from the later of the date specified on which the Purchaser received the Superior Proposal Notice and a copy of the proposed definitive agreement for the new Superior Proposal from the Company.
(4) 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 Section 6.2(b)(iv) an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its outside legal with respect a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such new Acquisition Proposal. press release as requested by the Purchaser and its counsel.
(5) If the Company provides the Purchaser with a Superior Proposal Notice on to the Purchaser after a date that is less than 10 Business Days before the Company Meeting, the Company shall either proceed with or shall postpone or adjourn the Company Meeting, as directed by the Purchaser acting reasonably, to a date that is not more than 10 Business Days after the scheduled date of the Company Meeting, but in any event to a date that is not less than five Business Days prior to the Company Meeting, Outside Date.
(6) Nothing contained in this Section 5.4 shall limit in any way the obligation of the Company shall adjourn the Company Meeting to a date that is not later than the tenth Business Day following the first day of the Right to Match Period. The Company shall not be under any obligation to convene and hold the Company Meeting following the termination in accordance with Section 2.3 of this AgreementAgreement while this Agreement remains in force.
(f7) The Company Nothing contained in this Agreement shall ensure 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 each of the Company Entities, and each of its and their respective Representatives, is aware of the provisions of Section 6.1 and this Section 6.2 and the Company shall be responsible for any breach of Section 6.1 or this Section 6.2 by such personsnot a Superior Proposal.
Appears in 1 contract
Samples: Arrangement Agreement (Aphria Inc.)
Right to Match. (a) Notwithstanding Section 6.1 8.1(a) or any other provision of this AgreementAgreement to the contrary, if after the date hereof the Company or any of the Company EntitiesCompany, or any of its or their respective Representatives, receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that did was not result from a breach solicited after the date hereof in contravention of Section 6.1 by the Company or the Company Entities8.1, the Company and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected expect to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties, the Company, the Company Entities and their Representatives may:
A. furnish information with respect to the Company and the Company Entities to the person making such Acquisition Proposal and its Representatives provided that (1) the Company first enters into a confidentiality agreement with such person that is no less favourable to the Company than the Non-Disclosure Agreement, and sends a copy of such agreement to the Purchaser promptly following its execution, and (2) the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representatives; and
B. engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1 8.1(a) or any other provision of this AgreementAgreement to the contrary notwithstanding, the Company may, at any time after the date of this Agreement and prior to the Company MeetingAgreement, terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal (with the exception of a confidentiality and standstill agreement described in Section 6.28.2(a), the execution of which shall not be subject to the conditions of this Section 6.2 (b8.2(b)) if and only if:
(i) such Acquisition Proposal did not result from a breach of Section 6.1 8.1 and the Company has complied with the other terms of this Section 6.28.2;
(ii) the Board of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to lead to constitute a Superior Proposal and that the failure to take the relevant action would be inconsistent conflict with its fiduciary duties;
(iii) the Company has (A) given written notice to the Purchaser of the determination of the Board of Directors that such Acquisition Proposal constitutes a Superior Proposal and that the Board of Directors intends to withdraw, modify, qualify or change in a manner adverse to the Purchaser or the Parent its approval or recommendation of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) Acquisition (the “Superior Proposal Notice”) and (B) provided the Purchaser with a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counsel, determined should be ascribed to any non-cash consideration included in such Acquisition Proposal);
(iv) a period of least five full Business Days (such five Business Day Period, the “Right to Match Period”) shall have elapsed from 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 documents referred to in clause (B) of Section 6.2(b)(iii8.2(b)(iii), it being understood that the Right to Match Period shall expire at 12:00 p.m. (Toronto time) at the end of the fifth full Business Day following such later date;
(v) if the Purchaser and the Parent have offered to amend the terms of this Agreement and the Arrangement during the Right to Match Period pursuant to Section 6.2(c8.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period; and
(vi) the Company terminates this Agreement pursuant to Section 7.1(d)(i) and pays the Termination Payment pursuant to Section 7.2(e)(iii9.1(d)(i).
(c) During the Right to Match Period, the Purchaser and the Parent will have the opportunity, but not the obligation, to offer to amend the terms of this Agreement and the ArrangementAgreement. The Company agrees that, if requested by the Purchaser, it will negotiate with the Purchaser and the Parent in good faith to make such amendments to the terms of this Agreement and the Arrangement as would enable it to proceed with the transactions contemplated hereby on such amended terms. The Board of Directors will review in good faith any such offer made by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement in order to determine, as part of exercising its fiduciary duties, and in consultation with its financial advisors and outside legal counsel, whether such offer to amend the terms of this Agreement and the Arrangement would, upon its acceptance, result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are it is proposed to be amended as at the termination of the Right to Match Period. If the Board of Directors determines that the applicable Acquisition Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement Acquisition as they are proposed to be amended as at the termination of the Right to Match Period, the Company will forthwith so advise the Purchaser and the Parent and will promptly thereafter accept the offer by the Purchaser and the Parent to amend the terms of this Agreement and the Arrangement and the Parties agree to take such actions and execute such documents as are necessary to give effect to the foregoing.
(d) The If requested by the Purchaser, the Board of Directors shall reaffirm its recommendation in favour of the Arrangement Acquisition by news release promptly after (A) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made or (B) the Board of Directors determines that an Acquisition Proposal which previously constituted a Superior Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement as they are proposed to be amended as at the termination of the Right to Match Period. The Purchaser shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e) Each successive material amendment, change or 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 Shareholders or other material terms and conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.2 8.2 and shall result in the commencement of a new Right to Match Period from the date specified in Section 6.2(b)(iv8.2(b)(vi) with respect to such new Acquisition Proposal. If the Company provides the Purchaser with a Superior Proposal Notice on a date that is less than five Business Days prior to the Company Meeting, the Company shall adjourn the Company Meeting to a date that is not later than the tenth Business Day following the first day of the Right to Match Period. The Company shall not be under any obligation to hold the Company Meeting following the termination of this Agreement.
(f) The Company shall ensure that each of the Company Entities, and each of its and their respective Representatives, Representatives is aware of the provisions of Section 6.1 8.1 and this Section 6.2 8.2 and the Company shall be responsible for any breach of Section 6.1 8.1 or this Section 6.2 8.2 by such persons.
(g) Nothing contained in this Agreement shall prohibit the Board of Directors from making a change in recommendation or from making any disclosure to any Securityholders of the Company prior to the Effective Time, including for greater certainty disclosure of a change in recommendation, if, in the good faith judgment of the Board of Directors, after consultation with outside legal counsel, failure to take such action or make such disclosure would conflict with the Board of Director’s exercise of its fiduciary duties or such action or disclosure is otherwise required under Law (including without limitation by responding to an Acquisition Proposal under a directors’ circular or otherwise as required under applicable Law).
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Right to Match. (a) Notwithstanding Section 6.1 6.1(a) or any other provision of this AgreementAgreement to the contrary, if after the date hereof the Company or any of the Company Entities, Kimber or any of its or their respective Representatives, Representatives receives a written Acquisition Proposal (including, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof) that did was not result from a breach solicited after the date hereof in contravention of Section 6.1 by the Company or the Company Entities, the Company 6.1(a) Kimber and its Representatives may:
(i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose purposes of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal; and
(ii) if the Board of Directors determines in good faithdetermines, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and that the failure to take the relevant action would conflict with its fiduciary duties, the Company, the Company Entities and their Representatives mayProposal:
A. (A) furnish information with respect to the Company Kimber and the Company Entities Subsidiaries to the person making such Acquisition Proposal and its Representatives Representatives, provided that (1A) the Company Kimber first enters into a confidentiality agreement with such person person, that is no less favourable to the Company Kimber than the Non-Disclosure Agreement, Confidentiality Agreement and (B) Kimber sends a copy of such agreement to the Purchaser Invecture promptly following its execution, execution and (2) Invecture is promptly provided with the Company promptly provides to the Purchaser any material non-public information concerning the Company or the Company Entities that is provided to such person which was not previously provided to the Purchaser, the Parent or their respective Representativesperson; and
B. (B) engage in discussions and negotiations with respect to the Acquisition Proposal with the person making such Acquisition Proposal and its Representatives.
(b) Notwithstanding Section 6.1 6.1(a) or any other provision of this Agreement, the Company may, at any time after the date of this Agreement and prior to the Company Meeting, Kimber may terminate this Agreement and accept, approve, recommend or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal prior to completion of the Offer and recommend or approve an Acquisition Proposal, including in each case, for greater certainty, an amendment, change or modification to an Acquisition Proposal made prior to the date hereof, if and only if (with the exception of a confidentiality and standstill agreement described in Section 6.26.2(b), the execution of which shall not be subject to the conditions of this Section 6.2 (b6.2(b)) if and only if:):
(i) such Acquisition Proposal did not result from a breach Kimber and each of Section 6.1 and the Company its Representatives has complied with the other terms of its obligations under this Section 6.26.1;
(ii) the Board of Directors has determined in good faithdetermined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to take the relevant action would be inconsistent with its fiduciary dutiesProposal;
(iii) the Company Kimber has (A) given delivered written notice to the Purchaser Invecture of the determination of the Board of Directors that such the Acquisition Proposal constitutes is a Superior Proposal and that of the intention of the Board of Directors intends to withdrawaccept, modifyapprove, qualify recommend or change enter into an agreement in a manner adverse to the Purchaser or the Parent its approval or recommendation respect of the Arrangement (including the recommendation that the Shareholders vote in favour of the Arrangement Resolution) such Superior Proposal (the “Superior Proposal Notice”) and (B) has provided Invecture with a copy of the Purchaser with document containing such Acquisition Proposal;
(iv) at least five business days have elapsed since the later of the date on which Invecture received a copy of the Superior Proposal Notice and the date on which Invecture received a copy of the document containing such Acquisition Proposal (together, if applicable, with a summary of the value that the Board of Directors has, after consultation with its financial advisors and outside legal counsel, determined should be ascribed to any non-cash consideration included in such Acquisition Proposal);
(iv) a period of least five full Business Days (such five Business Day Periodbusiness day period, the “Right to Match Period”) shall have elapsed from 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 documents referred to in clause (B) of Section 6.2(b)(iii)and, it being understood that for greater certainty, the Right to Match Period shall expire at 12:00 4:00 p.m. (Toronto Vancouver time) at the end of on the fifth full Business Day business day following such later datethe day Invecture received the Superior Proposal Notice;
(v) if the Purchaser Invecture and the Parent Offeror have offered to amend the terms of the Offer and this Agreement and the Arrangement during the Right to Match Period pursuant to Section 6.2(c), the Board of Directors has determined, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to be a Superior Proposal when assessed against this Agreement and the Arrangement Offer as they are it is proposed to be amended as at the termination of the Right to Match Period; and
(vi) the Company Kimber terminates this Agreement pursuant to Section 7.1(d)(i8.1(k) and pays the Termination Payment pursuant to Section 7.2(e)(iii8.2(a)(ii).
(c) During the Right to Match Period, the Purchaser Invecture and the Parent Offeror will have the opportunity, but not the obligation, to offer to amend the terms of the Offer and this Agreement and the ArrangementAgreement. The Company Kimber agrees that, if requested by the PurchaserInvecture, it will negotiate with the Purchaser and the Parent Invecture in good faith to make such amendments to amend the terms of the Offer and this Agreement and the Arrangement as would enable it them to proceed with the transactions contemplated hereby Offer and any Contemplated Transactions on such amended adjusted terms. The Board of Directors will review in good faith any such offer made by the Purchaser Invecture and the Parent Offeror to amend the terms of the Offer and this Agreement and the Arrangement in order to determine, as part in good faith in the exercise of exercising its fiduciary duties, whether Invecture and in consultation with its financial advisors and outside legal counsel, whether such the Offeror’s offer to amend the terms of Offer and this Agreement and the Arrangement wouldAgreement, upon its acceptance, would result in the applicable Acquisition Proposal ceasing to be a Superior Proposal when assessed against this Agreement and the Arrangement Offer as they are it is proposed to be amended as at the termination of the Right to Match Period. If the Board of Directors determines that the applicable Acquisition Proposal would cease to be a Superior Proposal when assessed against this Agreement and the Arrangement Offer as they are it is proposed to be amended as at the termination of the Right to Match Period, the Company will forthwith so advise the Purchaser Invecture and the Parent Offeror will amend the terms of the Offer and will promptly thereafter accept Kimber, Invecture and the Offeror shall enter into an amendment to this Agreement reflecting the offer by the Purchaser Invecture and the Parent Offeror to amend the terms of the Offer and this Agreement and the Arrangement and the Parties agree to take such actions and execute such documents as are necessary to give effect to the foregoingAgreement.
(d) The Board of Directors shall will promptly reaffirm its recommendation in favour of the Arrangement Offer by news press release promptly after (Ai) any Acquisition Proposal that the Board of Directors determines not to be a Superior Proposal is publicly announced or made and the Board of Directors determines it is not a Superior Proposal or (Bii) the Board of Directors determines that a proposed amendment to the terms of the Offer pursuant to Section 6.2(c) would result in an Acquisition Proposal which previously constituted a Superior Proposal would cease to be not being a Superior Proposal when assessed against this Agreement and the Arrangement Offer as they are it is proposed to be amended as at the termination of the Right to Match Period, and Invecture has so amended the terms of the Offer in accordance with Section 6.2(c). The Purchaser shall Invecture and the Offeror will be given a reasonable opportunity to review and comment on the form and content of any such news press release. Such news release shall state that the Board of Directors has determined that the applicable Acquisition Proposal is not a Superior Proposal.
(e) Each successive material amendment, change or 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 Shareholders or other material terms and conditions thereof shall will constitute a new Acquisition Proposal for the purposes of this Section 6.2 and shall result in the commencement of a new Right to Match Period from the date specified in Section 6.2(b)(iv) with respect to such new Acquisition Proposal. If the Company provides the Purchaser with a Superior Proposal Notice on a date that is less than five Business Days prior to the Company Meeting, the Company shall adjourn the Company Meeting to a date that is not later than the tenth Business Day following the first day of the Right to Match Period. The Company shall not be under any obligation to hold the Company Meeting following the termination of this Agreement6.1.
(f) The Company Nothing in this Agreement shall ensure prevent the Board of Directors from responding through a directors’ circular or otherwise as required by applicable Laws to an Acquisition Proposal that each it determines is not a Superior Proposal. Further, nothing in this Agreement shall prevent the Board of Directors from making any disclosure to the securityholders of Kimber if the Board of Directors, acting in good faith and upon the advice of its outside legal counsel, shall have first determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Company EntitiesBoard of Directors or such disclosure is otherwise required under applicable Laws, and each provided, however, that the Board of its and their respective Representatives, is aware Directors shall not be permitted to make a Change of the provisions of Recommendation other than as permitted by Section 6.1 and this Section 6.2 and the Company shall be responsible for any breach of Section 6.1 or this Section 6.2 by such persons6.2(b).
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