Right to Match. 7.3.1 Tahoe covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless: (a) Tahoe has complied with its obligations under Section 7.2 and Section 7.3 and has provided Pan American with a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration); (b) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (i) the date on which Pan American receives written notice from the Tahoe Board that the Tahoe Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal, and (ii) the date Pan American receives a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration) from Tahoe that the Tahoe Board determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal; (c) if Pan American has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe Board shall have determined in good faith, after consultation with the Tahoe Financial Advisor and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments; (d) Tahoe shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii); and (e) Tahoe shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American (or as Pan American may direct by notice in writing) the Termination Fee. 7.3.2 During the Response Period, Pan American shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe shall negotiate in good faith with Pan American to enable Pan American to make such amendments to the terms of this Agreement and the Plan of Arrangement as would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. Within five (5) Business Days (the “Review Period”) of any such offer by Pan American to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe Board shall review and determine whether the Acquisition Proposal to which Pan American is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American to be amended. Such determination to be made by the Tahoe Board shall be communicated to Pan American by the end of the Review Period. If the Tahoe Board determines that the Acquisition Proposal to which Pan American is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b) by the prompt issuance of a press release to that effect. 7.3.3 Where Tahoe has provided Pan American notice pursuant to Section 7.3.1(b) less than seven (7) calendar days prior to the Tahoe Meeting, if requested to do so by Pan American, Tahoe shall postpone or adjourn the Tahoe Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days after the date of such notice; provided, however, that in the event that the Tahoe Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe Meeting has been adjourned. 7.3.4 Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Pan American shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal. 7.3.5 Notwithstanding any of the provisions of Section 7.2 and 7.3, the Tahoe Board shall have the right to respond, within the time and in the manner required by applicable Securities Laws, to any take-over bid or tender or exchange offer made for the Tahoe Shares that it determines is not a Superior Proposal; provided that: (a) Pan American and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Board shall give reasonable consideration to such comments; and (b) notwithstanding that the Tahoe Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Board shall not be permitted to make a Tahoe Change in Recommendation unless the provisions of Section 7.2 and 7.3 are met.
Appears in 2 contracts
Samples: Arrangement Agreement (Pan American Silver Corp), Arrangement Agreement (Tahoe Resources Inc.)
Right to Match. 7.3.1 Tahoe covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless:
(a) Tahoe has complied with its obligations under Section 7.2 and Section 7.3 and has provided Pan American with a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration);
(b) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (i) the date on which Pan American receives written notice from the Tahoe Board that the Tahoe Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal, and (ii) the date Pan American receives a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration) from Tahoe that the Tahoe Board determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal;
(c) if Pan American has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe Board shall have determined in good faith, after consultation with the Tahoe Financial Advisor and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(d) Tahoe shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii); and
(e) Tahoe shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American (or as Pan American may direct by notice in writing) the Termination Fee.
7.3.2 During the Response Period, Pan American shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe shall negotiate in good faith with Pan American to enable Pan American to make such amendments to the terms of this Agreement and the Plan of Arrangement as would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. Within five (5) Business Days (the “Review Period”) of any such offer by Pan American to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe Board shall review and determine whether the Acquisition Proposal to which Pan American is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American to be amended. Such determination to be made by the Tahoe Board shall be communicated to Pan American by the end of the Review Period. If the Tahoe Board determines that the Acquisition Proposal to which Pan American is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b) by the prompt issuance of a press release to that effect.
7.3.3 Where Tahoe has provided Pan American notice pursuant to Section 7.3.1(b) less than seven (7) calendar days prior to the Tahoe Meeting, if requested to do so by Pan American, Tahoe shall postpone or adjourn the Tahoe Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days after the date of such notice; provided, however, that in the event that the Tahoe Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe Meeting has been adjourned.
7.3.4 Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Pan American shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal.
7.3.5 Notwithstanding any of the provisions of Section 7.2 and 7.3, the Tahoe Board shall have the right to respond, within the time and in the manner required by applicable Securities Laws, to any take-over bid or tender or exchange offer made for the Tahoe Shares that it determines is not a Superior Proposal; provided that:
(a) Pan American and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Board shall give reasonable consideration to such comments; and
(b) notwithstanding that the Tahoe Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Board shall not be permitted to make a Tahoe Change in Recommendation unless the provisions of Section 7.2 and 7.3 are met.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. 7.3.1 Tahoe (a) TIN covenants that it shall will not accept, approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a any Superior Proposal (Proposal, other than a confidentiality agreement and a standstill agreement permitted by Section 7.2.3) 8.2(c), unless:
(ai) Tahoe TIN has (A) complied with its obligations under Section 7.2 and Section 7.3 and has 8.2, (B) provided Pan American ELT with a copy of all the terms and conditions of the Superior Proposal in accordance with this Agreement, and (C) has consulted with its legal counsel in respect of the foregoing; and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration);
(bii) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (iA) the date on which Pan American ELT receives written notice from the Tahoe TIN Board that the Tahoe TIN Board has determined, subject only to compliance with this Section 7.38.3, to accept, approve, accept, endorse, recommend or enter into a binding written definitive agreement with respect to the such Superior Proposal, and (iiB) the date Pan American ELT receives a complete copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash consideration) from Tahoe that the Tahoe Board determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal;8.2(d).
(cb) if Pan American has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe Board shall have determined in good faith, after consultation with the Tahoe Financial Advisor and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(d) Tahoe shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii); and
(e) Tahoe shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American (or as Pan American may direct by notice in writing) the Termination Fee.
7.3.2 During the Response Period, Pan American shall ELT will have the right, but not the obligation, to make an irrevocable offer in writing to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe shall negotiate in good faith with Pan American to enable Pan American to make such amendments to the terms of this Agreement and the Plan of Arrangement as would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. Within five (5) Business Days (the “Review Period”) of any such offer by Pan American to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe Consideration (“Amended Offer”). The TIN Board shall immediately review and in good faith any Amended Offer made before the expiry of the Response Period in order to determine whether the Acquisition Proposal to which Pan American ELT is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are it is proposed by Pan American to be amended. Such determination to be made by in the Tahoe Board shall be communicated to Pan American by the end of the Review PeriodAmended Offer. If the Tahoe TIN Board determines that the Acquisition Proposal referred to which Pan American is responding would not continue to be in Section 8.3(a) no longer constitutes a Superior Proposal when assessed against this Agreement Proposal, the TIN Board will immediately cause TIN to accept the Amended Offer, and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe Board shall promptly will reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b) by the prompt issuance of a press release release, in form and content satisfactory to ELT, acting reasonably, to that effect. If the TIN Board determines, acting in good faith after obtaining advice from its outside legal counsel and financial advisor, that notwithstanding the terms and conditions of the Amended Offer, the Acquisition Proposal continues to be a Superior Proposal, TIN may terminate this Agreement in accordance with the procedures set forth in Section 9.2(a)(iv)(A) provided that immediately after such termination, XXX enters into a definitive and binding agreement with respect to the Superior Proposal that is on identical terms and conditions as advised by TIN to ELT and TIN concurrently pays the Termination Fee as required by Section 9.3(b).
7.3.3 Where Tahoe has provided Pan American notice pursuant to Section 7.3.1(b(c) less than seven (7) calendar days prior to the Tahoe Meeting, if requested to do so by Pan American, Tahoe shall postpone or adjourn the Tahoe Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days after the date of such notice; provided, however, that in the event that the Tahoe Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe Meeting has been adjourned.
7.3.4 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 TIN or TIN Shareholders shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 8.3 and Pan American ELT shall be afforded a new Response Period and a further opportunity to exercise the rights afforded in paragraph 7.3.2 Section 8.3(b) in respect of each such Acquisition Proposal.
7.3.5 Notwithstanding , provided, however, that upon acceptance of an Amended Offer by ELT, TIN shall not consider any of further Acquisition Proposal made by the provisions of Section 7.2 and 7.3, same Person or Persons who made the Tahoe Board shall have the right to respond, within the time and Superior Proposal that resulted in the manner required by applicable Securities Laws, to any take-over bid or tender or exchange offer made for the Tahoe Shares that it determines is not a Superior Proposal; provided that:
(a) Pan American and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Board shall give reasonable consideration to such comments; and
(b) notwithstanding that the Tahoe Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Board shall not be permitted to make a Tahoe Change in Recommendation unless the provisions of Section 7.2 and 7.3 are metAmended Offer.
Appears in 1 contract
Samples: Arrangement Agreement
Right to Match. 7.3.1 Tahoe Exx covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless:
(a) Tahoe Exx has complied with its obligations under Section 7.2 and this Section 7.3 and has provided Pan American Gold Royalty with a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Exx Board setting out the value or range of values in financial terms that the Tahoe Exx Board, in consultation with the Tahoe Exx Financial AdvisorAdvisors, determined in good faith should be ascribed to such non-cash consideration);
(b) a period (the “Response Period”) of five (5) Business Days has elapsed from the date that is the later of (i) the date on which Pan American Gold Royalty receives written notice from the Tahoe Exx Board that the Tahoe Exx Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal, and (ii) the date Pan American Gold Royalty receives a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Exx Board setting out the value or range of values in financial terms that the Tahoe Exx Board, in consultation with the Tahoe Exx Financial AdvisorAdvisors, determined in good faith should be ascribed to such non-cash consideration) from Tahoe Exx that the Tahoe Exx Board determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal;
(c) if Pan American Gold Royalty has proposed to amend the terms of this Agreement in accordance with Section 7.3.2, then, as required by Section 7.3.2, the Tahoe Exx Board shall have determined in good faith, after consultation with the Tahoe Exx Financial Advisor Advisors and outside counsel, that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;
(d) Tahoe Exx shall have terminated this Agreement pursuant to Section 8.2.1(d)(ii8.2.1(d)(i); and
(e) Tahoe Exx shall have previously paid or caused to be paid, or concurrently pays or causes to be paid, to Pan American Gold Royalty (or as Pan American Gold Royalty may direct by notice in writing) the Termination Fee.
7.3.2 During the Response Period, Pan American Gold Royalty shall have the right, but not the obligation, to offer to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe Exx shall negotiate in good faith with Pan American Gold Royalty to enable Pan American Gold Royalty to make such amendments to the terms of this Agreement and the Plan of Arrangement as would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. Within five (5) Business Days (the “Review Period”) of any such offer by Pan American Gold Royalty to amend the terms of this Agreement and the Plan of Arrangement, including an increase in, or modification of, the aggregate Consideration, the Tahoe Exx Board shall review and determine whether the Acquisition Proposal to which Pan American Gold Royalty is responding would continue to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American Gold Royalty to be amended. Such determination to be made by the Tahoe Exx Board shall be communicated to Pan American Gold Royalty by the end of the Review Period. If the Tahoe Exx Board determines that the Acquisition Proposal to which Pan American Gold Royalty is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American Gold Royalty to be amended, Tahoe Exx shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe Exx Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b) by the prompt issuance of a press release to that effect.
7.3.3 Where Tahoe Exx has provided Pan American Gold Royalty notice pursuant to Section 7.3.1(b) less than seven (7) calendar days prior to the Tahoe Exx Meeting, if requested to do so by Pan AmericanGold Royalty, Tahoe shall Exx shall, postpone or adjourn the Tahoe Exx Meeting to a date that is not less than seven five (75) calendar days Business Days and not more than ten (10) calendar days Business Days after the date of such notice; provided, however, that in the event that the Tahoe Exx Meeting is so postponed or adjourned, the Mailing Meeting Deadline and the Outside Date shall be extended by the same number of days as the Tahoe Exx Meeting has been postponed or adjourned.
7.3.4 Each successive amendment to any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.3 and Pan American Gold Royalty shall be afforded a new Response Period and the rights afforded in paragraph 7.3.2 in respect of each such Acquisition Proposal.
7.3.5 Notwithstanding any of the provisions of Section 7.2 and 7.3, the Tahoe Exx Board shall have the right to respond, within the time and in the manner required by applicable Securities Laws, to any take-over bid or tender or exchange offer made for the Tahoe Exx Shares that it determines is not a Superior Proposal; provided that:
(a) Pan American Gold Royalty and its counsel have been provided with a reasonable opportunity to review and comment on any such response and the Tahoe Exx Board shall give reasonable consideration to such comments; and
(b) notwithstanding that the Tahoe Exx Board may be permitted to respond in the manner set out herein to a take-over bid, the Tahoe Exx Board shall not be permitted to make a Tahoe an Exx Change in Recommendation unless the provisions of Section 7.2 and 7.3 are met.
Appears in 1 contract
Right to Match. 7.3.1 Tahoe covenants that it shall not approve, accept, endorse, recommend or enter into any agreement, understanding or arrangement in respect of a Superior Proposal (other than a confidentiality and standstill agreement permitted by Section 7.2.3) unless:
(a) Tahoe If Great Canadian receives an Acquisition Proposal that constitutes a Superior Proposal before the approval of the Arrangement Resolution by the Shareholders, Great Canadian may, subject to compliance with Article 8, enter into a definitive agreement with respect to such Superior Proposal or the Board may make a Change in Recommendation, if and only if:
(i) Great Canadian has complied been, and continues to be, in compliance with its obligations under Section 7.2 this Article 7 in all material respects;
(ii) Great Canadian has delivered to RAC a written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and Section 7.3 of the intention of the Board to terminate this Agreement and enter into a definitive agreement with respect to such Superior Proposal (the “Superior Proposal Notice”);
(iii) Great Canadian has provided Pan American with RAC a copy of the proposed definitive agreement for the Superior Proposal (and, if the consideration proposed under any) and all ancillary documentation and supporting materials related to and detailing the Superior Proposal includes non-(including any financing documents subject to customary confidentiality provisions) provided to Great Canadian, including the cash consideration, a written notice from the Tahoe Board setting out the value or range of values in financial terms that the Tahoe BoardBoard has, in after consultation with the Tahoe Financial Advisoroutside financial advisors, determined in good faith should be ascribed to such any non-cash consideration);consideration offered under the Superior Proposal;
(biv) a period at least five Business Days (the “Response Matching Period”) of five (5) Business Days has have elapsed from the date that is the later of the date on which RAC received the Superior Proposal Notice and (iii) the date on which Pan American receives written notice from the Tahoe Board that the Tahoe Board has determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement with respect to the Superior Proposal, and (ii) the date Pan American receives RAC received a copy of the Superior Proposal (and, if the consideration proposed under the Superior Proposal includes non-cash consideration, a written notice from the Tahoe Board setting out the value or range of values documentation referred to in financial terms that the Tahoe Board, in consultation with the Tahoe Financial Advisor, determined in good faith should be ascribed to such non-cash considerationSection 7.4(a)(iii) from Tahoe that the Tahoe Board determined, subject only to compliance with this Section 7.3, to approve, accept, endorse, recommend or enter into a binding written agreement above with respect to the such Superior Proposal;
(cv) if Pan American during any Matching Period, RAC has proposed to amend had the terms of this Agreement opportunity (but not the obligation), in accordance with Section 7.3.27.4(b), then, as required by Section 7.3.2to offer to amend this Agreement and the Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal;
(vi) after the Matching Period, the Tahoe Board shall have has determined in good faith, after consultation with the Tahoe Financial Advisor its outside legal counsel and outside counselindependent financial advisors, that the such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by RAC under Section 7.4(b)) and, after taking into account consultation with its outside legal counsel that the failure to take such amendments;actions would be inconsistent with the Board’s fiduciary duties; and
(dvii) Tahoe shall have terminated before or concurrently with entering into a definitive agreement Great Canadian terminates this Agreement pursuant to Section 8.2.1(d)(ii); and8.2(d)(i) and pays the Great Canadian Termination Fee pursuant to Section 8.3.
(eb) Tahoe shall have previously paid or caused to be paidDuring the Matching Period, or concurrently pays or causes to be paid, to Pan American such longer period as Great Canadian may approve in writing for such purpose: (or as Pan American may direct by notice in writinga) the Termination Fee.
7.3.2 During the Response Period, Pan American shall have the right, but not the obligation, to Board will review any offer made by RAC under Section 7.4(a) to amend the terms of this Agreement and the Plan of Arrangement. During the Response Period, Tahoe shall negotiate Arrangement in good faith with Pan American in order to enable Pan American to make determine whether such amendments to the terms of this Agreement and the Plan of Arrangement as proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal. Within five ; and (5b) Business Days (the “Review Period”) of any Great Canadian will negotiate in good faith with RAC to make such offer by Pan American amendments to amend the terms of this Agreement and the Plan of ArrangementArrangement as would enable RAC to proceed with the transactions contemplated by this Agreement on such amended terms. If the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, Great Canadian will promptly so advise RAC and the Parties will amend this Agreement to reflect such offer made by RAC, and will take and cause to be taken all such actions as are necessary to give effect to the foregoing, including promptly re-affirming the Board Recommendation to the Shareholders.
(c) Each successive amendment or modification to any Acquisition Proposal that results in an increase in, or modification of, the aggregate Consideration, the Tahoe Board shall review and determine whether the Acquisition Proposal to which Pan American is responding would continue consideration (or value of such consideration) to be a Superior Proposal when assessed against this Agreement and against the Plan of Arrangement as they are proposed by Pan American to be amended. Such determination to be made received by the Tahoe Board shall be communicated to Pan American by the end of the Review Period. If the Tahoe Board determines that the Acquisition Proposal to which Pan American is responding would not continue to be a Superior Proposal when assessed against this Agreement and the Plan of Arrangement as they are proposed by Pan American to be amended, Tahoe shall enter into an amendment to this Agreement to give effect to such amendments and the Tahoe Board shall promptly reaffirm its recommendation of the Plan of Arrangement on the same basis as described in Section 2.6(b) by the prompt issuance of a press release to that effect.
7.3.3 Where Tahoe has provided Pan American notice pursuant to Section 7.3.1(b) less than seven (7) calendar days prior to the Tahoe Meeting, if requested to do so by Pan American, Tahoe shall postpone Shareholders or adjourn the Tahoe Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days after the date of such notice; provided, however, that in the event that the Tahoe Meeting is so adjourned, the Mailing Deadline and the Outside Date shall be extended by the same number of days as the Tahoe Meeting has been adjourned.
7.3.4 Each successive amendment to any Acquisition Proposal shall other material terms or conditions thereof will constitute a new Acquisition Proposal for the purposes of this Section 7.3 7.4, and Pan American shall RAC will be afforded a new Response five Business Day Matching Period from the later of (i) the date on which RAC received the new Superior Proposal Notice with respect to such new Superior Proposal, and (ii) the rights afforded date on which RAC received a copy of the documentation referred to in paragraph 7.3.2 in Section 7.4(a)(iii) above with respect of each to such Acquisition new Superior Proposal.
7.3.5 Notwithstanding (d) The entire Board will promptly reaffirm the Board Recommendation by press release after: (i) the Board determines any of the provisions of Section 7.2 and 7.3, the Tahoe Board shall have the right to respond, within the time and in the manner required by applicable Securities Laws, to any take-over bid Acquisition Proposal that has been publicly announced or tender or exchange offer made for the Tahoe Shares that it determines publicly disclosed is not a Superior Proposal; provided that:
or (aii) Pan American the Board determines that a proposed amendment to the terms of the Arrangement would result in any Acquisition Proposal which has been publicly announced or made not being a Superior Proposal, and RAC has so amended the terms of the Arrangement. RAC and its legal counsel have been provided with will be given a reasonable opportunity to review and comment on the form and content of any such response press release and the Tahoe Board shall give Great Canadian will make all reasonable consideration amendments to such comments; andpress release as requested by RAC and its legal counsel.
(be) notwithstanding If Great Canadian provides a Superior Proposal Notice to RAC on a date that is less than 7 Business Days before the Tahoe Board may Meeting, Great Canadian will be permitted entitled to, and will upon request from RAC, postpone such Meeting in accordance with the terms of this Agreement to respond a date specified by RAC that is not more than 7 days after the scheduled date of the Meeting, provided that in no event will such adjourned or postponed meeting be held on a date that is less than 7 Business Days before the Outside Date.
(f) Great Canadian will advise its subsidiaries and its Representatives of the prohibitions set out in this Section 7.4 and any violation of the restrictions set forth in this Section 7.4 by a subsidiary of Great Canadian or a Representative or Great Canadian or a subsidiary will be deemed to be a breach of this Section 7.4 by Great Canadian for which Great Canadian will be responsible.
(g) RAC agrees that all information provided to it by Great Canadian with respect to any actual or contemplated Superior Proposal pursuant to this Article 7 will be treated as if it were “Information” as that term is defined in the manner set out herein to a take-over bid, the Tahoe Board shall Confidentiality Agreement and will not be permitted to make a Tahoe Change disclosed or used by RAC except in Recommendation unless the accordance with provisions of Section 7.2 and 7.3 are metthe Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
8.1 Term
Appears in 1 contract
Samples: Arrangement Agreement
