Common use of Right to Match Clause in Contracts

Right to Match. (1) In the event that the Board determines that it has received a Superior Proposal (and for greater certainty, an Acquisition Proposal which the Board has determined to constitute a Superior Proposal, but, as contemplated in Section 6.3(2)(c)(i), which contains an Information Condition that has not been satisfied or irrevocably waived shall not constitute a Superior Proposal for purposes of this Section 6.4) at any time following the date of this Agreement and prior to the Company Meeting, the Company shall immediately notify the Purchaser in writing, and shall include in such notice (i) a copy of the document evidencing such Superior Proposal; (ii) the identity of the person making the Superior Proposal; (iii) a description of the terms and conditions of the Superior Proposal (including a written notice from the Board disclosing the value in financial terms that the Board has, in consultation with the Financial Advisor, determined is ascribed to any non-cash consideration offered under such Superior Proposal); and (iv) a copy of the letter of commitment, term sheet or other comparable evidence of financing or other evidence establishing the ability to consummate the transaction upon which the Board relied in making the determination referred to in clause (iii) of the definition of “Superior Proposal” (the date that the Purchaser receives the last of such documents being the “Notice Date”). The Purchaser shall have the right, but is not required, during the five (5) Business Day period after the Notice Date (the “Response Period”), to offer in writing to amend the terms of this Agreement and the Plan of Arrangement (the “Amended Offer”). Until the Final Resolution Date (i) the Board shall not approve or recommend, or propose publicly to approve or recommend, such Superior Proposal nor shall the Company or any Subsidiary accept or enter into or propose publicly to accept or enter into any agreement, arrangement or understanding relating to such Superior Proposal (including any agreement to implement such Superior Proposal), and (ii) the Company shall consider, discuss and negotiate in good faith with the Purchaser any Amended Offer. For the purposes of the foregoing sentence, the “

Right to Match. (1) In If the event Company receives an Acquisition Proposal that the Board determines that it has received constitutes a Superior Proposal prior to the approval of the Arrangement Resolution by the Securityholders, the Board may, subject to compliance with Section 8.2, make a Change in Recommendation and enter into a definitive agreement with respect to such Acquisition Proposal, if and only if: 48 (and for greater certainty, an a) the Person making the Acquisition Proposal which was not restricted from making such Acquisition Proposal pursuant to confidentiality, standstill, use of information, permitted purpose or similar restriction or covenant in an existing confidentiality or similar agreement; (b) the Company has been, and continues to be, in compliance with its obligations under this Article 5 (other than de minimis breaches); (c) the Company has delivered to the Purchaser written notice of its receipt of such Acquisition Proposal and of the determination of the Board has determined to constitute a Superior Proposal, but, as contemplated in Section 6.3(2)(c)(i), which contains an Information Condition that has not been satisfied or irrevocably waived shall not constitute such Acquisition Proposal constitutes a Superior Proposal for purposes of this Section 6.4) at any time following the date of this Agreement and prior to the Company Meeting, the Company shall immediately notify the Purchaser in writing, and shall include in such notice (i) a copy of the document evidencing such Superior Proposal; (ii) the identity intention of the person making the Superior Proposal; (iii) Board to make a description of the terms Change in Recommendation and conditions of the Superior Proposal (including enter into such definitive agreement, together with a written notice from the Board disclosing regarding the value in and financial terms that the Board hasBoard, in consultation with the Financial Advisorits financial advisors, has determined is should be ascribed to any non-cash consideration offered under such Acquisition Proposal (the “Superior ProposalProposal Notice”); and (ivd) the Company has provided the Purchaser a copy of the letter of commitmentproposed definitive agreement for such Acquisition Proposal and all supporting materials, term sheet or other comparable evidence of including any financing or other evidence establishing documents supplied to the ability to consummate the transaction upon which the Board relied Company in making the determination referred to in clause connection therewith; (iiie) of the definition of “Superior Proposal” (the date that the Purchaser receives the last of such documents being the “Notice Date”). The Purchaser shall have the right, but is not required, during the at least five (5) Business Day period after the Notice Date Days (the “Response Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice and all of the materials set forth in Section 5.4(1)(d); (f) during any Matching Period, the Purchaser has the right (but not the obligation), in accordance with Section 5.4(2), to offer in writing to amend the terms of this Agreement and the Plan Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (g) if the Purchaser has offered to amend this Agreement and the Arrangement under Section 5.4(2), the Board has determined in good faith, after consultation with the Company’s outside legal counsels and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2); (h) the “Amended Offer”). Until Board has determined in good faith, after consultation with the Final Resolution Date Company’s outside legal counsel that it is necessary for the Board to enter into a definitive agreement with respect to such Acquisition Proposal in order to properly discharge its fiduciary duties; and (i) the Board shall not approve prior to or recommendconcurrently with entering into such definitive agreement with respect to such Acquisition Proposal, or propose publicly to approve or recommend, such Superior Proposal nor shall the Company or any Subsidiary accept or enter into or propose publicly terminates this Agreement pursuant to accept or enter into any agreement, arrangement or understanding relating Section 7.2(1)(c)(ii) and pays the Termination Fee pursuant to such Superior Proposal (including any agreement to implement such Superior Proposal), and (ii) the Company shall consider, discuss and negotiate in good faith with the Purchaser any Amended Offer. For the purposes of the foregoing sentence, the “Section 8.2.

Right to Match. (1a) In the event that the Board determines The Company covenants that it has received will not accept, approve or recommend or enter into any agreement, understanding, arrangement or Contract in respect of, or proceed with or recommend, a Superior Proposal (and for greater certainty, an Acquisition Proposal which the Board has determined to constitute other than a Superior Proposal, but, as contemplated in confidentiality agreement permitted by Section 6.3(2)(c)(i9.02(b), the execution of which contains an Information Condition that has will not been satisfied or irrevocably waived shall not constitute a Superior Proposal for purposes be subject to the conditions of this Section 6.49.03) at any time following the date of this Agreement and prior to the Company Meeting, the Company shall immediately notify the Purchaser in writing, and shall include in such notice unless: (i) a copy of the document evidencing such Superior ProposalCompany has complied with its obligations under this Article 9; (ii) the identity of the person making the Superior Proposal; (iii) Company has provided Purchaser with a description of the terms and conditions copy of the Superior Proposal (including together with a written notice from the Company Board disclosing of Directors regarding the value in and financial terms that the Company Board has, of Directors has in consultation with its financial advisors determined the Financial Advisor, determined is value should be ascribed to any non-cash consideration offered under such the Superior Proposal); and (iviii) a copy of the letter of commitment, term sheet or other comparable evidence of financing or other evidence establishing the ability to consummate the transaction upon which the Board relied in making the determination referred to in clause (iii) of the definition of “Superior Proposal” (the date that the Purchaser receives the last of such documents being the “Notice Date”). The Purchaser shall have the right, but is not required, during the five (5) Business Day period after the Notice Date (the “Response Period”’’) of five Business Days will have elapsed from the later of: (A) the date on which Purchaser received written notice from the Company advising that the Company Board of Directors has determined, subject only to compliance with this Section 9.03(a), to offer enter into an agreement, understanding, arrangement or Contract in writing respect of, or to proceed with, or recommend, such Superior Proposal; and (B) the date Purchaser receives a copy of the Superior Proposal and if the Purchaser delivers to the Company, prior to the expiry of the Response Period, a proposal to amend the terms of this Agreement and the Plan of Arrangement (the “Amended Offer”). Until the Final Resolution Date (i) the Board shall not approve or recommend, or propose publicly to approve or recommend, such Superior Proposal nor shall the Company or any Subsidiary accept or enter into or propose publicly to accept or enter into any agreement, arrangement or understanding relating to such Superior Proposal (including any agreement to implement such Superior Proposalas contemplated in Section 9.03(c), and the Company Board of Directors determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, taking into account the proposal by Purchaser to amend this Agreement and the Plan of Arrangement, that the Acquisition Proposal remains a Superior Proposal; and (iiiv) the Company shall considerconcurrently terminates this Agreement pursuant to Section 11.01(c) and the Company has previously or concurrently paid to Purchaser the fee payable under Section 11.03, discuss the Company acknowledging and negotiate in good faith with the Purchaser any Amended Offer. For the purposes agreeing that payment of the foregoing sentence, the “fee payable under Section 11.03 is a condition to valid termination of this Agreement under Section 11.01(c) and this Section 9.03.

Right to Match. (1) In If the event Company receives an Acquisition Proposal that the Board determines that it has received constitutes a Superior Proposal (and for greater certaintyprior to obtaining the Required Shareholder Approval, an Acquisition Proposal which the Board has determined may, or may cause the Company to constitute make a Change in Recommendation and, subject to compliance with Section 8.2(3), terminate this Agreement pursuant to Section 7.2(1)(c)(ii) in order to enter into a definitive agreement with respect to such Superior Proposal, butif and only if: (a) the Company has been, and continues to be, in compliance with its obligations under Article 5 in all material respects; (b) the Acquisition Proposal did not arise, directly or indirectly, as contemplated in Section 6.3(2)(c)(i), which contains an Information Condition a result of a violation by the Company of this Article 5 or by the OCM Shareholders of the Company Support and Voting Agreements; (c) the Company or its Representatives have delivered to the Purchaser a written notice of the determination of the Board that has not been satisfied or irrevocably waived shall not constitute such Acquisition Proposal constitutes a Superior Proposal for purposes of this Section 6.4) at any time following the date of this Agreement and prior to the Company Meeting, the Company shall immediately notify the Purchaser in writing, and shall include in such notice (i) a copy of the document evidencing such Superior Proposal; (ii) the identity intention of the person making the Superior Proposal; (iii) Board to enter into such definitive agreement and make a description of the terms and conditions of the Superior Proposal (including Change in Recommendation, together with a written notice from the Board disclosing regarding the value in and financial terms that the Board hasBoard, in consultation with the Financial Advisorits financial advisors, has determined is should be ascribed to any non-cash consideration offered under such Acquisition Proposal (the “Superior Proposal Notice”); (d) the Company or its Representatives have provided to the Purchaser a copy of the proposed definitive agreement for the Superior Proposal (including any financing commitments or other documents containing material terms and conditions of such Superior Proposal); and (ive) a copy of the letter of commitment, term sheet or other comparable evidence of financing or other evidence establishing the ability to consummate the transaction upon which the Board relied in making the determination referred to in clause (iii) of the definition of “Superior Proposal” (the date that the Purchaser receives the last of such documents being the “Notice Date”). The Purchaser shall have the right, but is not required, during the at least five (5) Business Day period after the Notice Date Days (the “Response Matching Period”) have elapsed from the date that is the later of the date on which the Purchaser received the Superior Proposal Notice the date on which the Purchaser received and a copy of the proposed definitive agreement for the Superior Proposal from the Company (including any financing commitments or other documents containing material terms and conditions of such Superior Proposal); (f) during any Matching Period, the Purchaser has had the opportunity (but not the obligation), in accordance with Section 5.4(2), to offer in writing to amend the terms of this Agreement and the Plan Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (g) after the Matching Period, the Board has determined in good faith, after consultation with its legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.4(2)); and (the “Amended Offer”). Until the Final Resolution Date (ih) the Board shall not approve or recommendhas determined, or propose publicly in good faith, after consultation with the Company’s outside legal counsel, that the failure to approve or recommend, such Superior Proposal nor shall the Company or any Subsidiary accept or make a Change in Recommendation and terminate this Agreement to enter into or propose publicly to accept or enter into any agreement, arrangement or understanding relating a definitive agreement with respect to such Superior Proposal (including any agreement to implement such Superior Proposal), and (ii) the Company shall consider, discuss and negotiate in good faith would be inconsistent with the Purchaser any Amended Offer. For the purposes of the foregoing sentence, the “its fiduciary duties.