Superior Proposals and Right to Match. (a) Notwithstanding anything to the contrary in this Agreement, if, prior to the approval of the Arrangement Resolution by the Company Shareholders, the Company receives a written Acquisition Proposal that the Company Board (after receiving advice from its financial advisors and outside legal counsel) determines in good faith constitutes a Company Superior Proposal, the Company Board may make a Change in Recommendation and/or enter into a definitive agreement (a "Proposed Agreement") with respect to such Company Superior Proposal if and only if: (i) such Acquisition Proposal did not result from a breach of Section 7.1 by the Company in any material respect; (ii) the Person making such Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with the Company (it being acknowledged by Hudbay that the automatic termination or automatic release, in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the entering into and announcement of this Agreement shall not be a violation of this Section 7.4(a)(ii)); (iii) the Company has provided Hudbay with a notice in writing (a "Superior Proposal Notice"), which notice shall contain (A) the determination of the Company Board that such Acquisition Proposal constitutes a Company Superior Proposal, (B) the value in financial terms that the Company Board has determined should be ascribed to any non-cash consideration offered under such Company Superior Proposal, (C) a copy of any Proposed Agreement relating to such Company Superior Proposal, and (D) copies of any material financing documents provided to the Company in connection therewith (with customary redactions); (iv) at least five business days (the "Matching Period") shall have elapsed from the date that Xxxxxx received the Superior Proposal Notice from the Company; (v) during the Matching Period, Hudbay shall have had the opportunity (but not the obligation) to amend the terms of the Arrangement in accordance with Section 7.4(b); (vi) after the Matching Period, the Company Board (after receiving advice from its financial advisors and outside legal counsel) has determined in good faith that such Acquisition Proposal continues to constitute a Company Superior Proposal compared to any proposed amendments to the terms of the Arrangement by Xxxxxx; and (vii) prior to or concurrently with entering into such Proposed Agreement, the Company shall have terminated this Agreement pursuant to Section 9.2(a)(iv)(D) and shall have paid to Hudbay the Company Termination Payment pursuant to Section 9.4(c)(ii). (b) The Company acknowledges and agrees that, during the Matching Period or such longer period as the Company may approve for such purpose, (i) Hudbay shall have the opportunity, but not the obligation, to propose to amend the terms of the Arrangement, (ii) the Company shall negotiate in good faith with Hudbay to enable Hudbay to make such amendments to the terms of the Arrangement as would enable Hudbay to proceed with the Arrangement and any related transactions on such amended terms, and (iii) the Company Board shall review any proposal by Hudbay to amend the terms of the Arrangement in order to determine in good faith whether such proposal would result in the Acquisition Proposal previously constituting a Company Superior Proposal ceasing to constitute a Company Superior Proposal compared to the proposed amendments to the terms of the Arrangement. If the Company Board determines that such Acquisition Proposal would cease to constitute a Company Superior Proposal as compared to the proposed amendments to the terms of the Arrangement, the Company and Hudbay will promptly amend this Agreement and the Plan of Arrangement to reflect such proposed amendments. (c) The Company Board shall promptly reaffirm the Company Board Recommendation by press release after: (i) any Acquisition Proposal which the Company Board determines not to constitute a Company Superior Proposal is publicly announced; or (ii) the Company Board determines that a proposed amendment to the terms of the Arrangement pursuant to Section 7.4(b) would result in any Acquisition Proposal which has been publicly announced no longer constituting a Company Superior Proposal. Hudbay and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by the Company, acting reasonably. (d) Nothing in this Agreement shall prevent the Company Board from (i) responding through a directors' circular or otherwise, only to the extent required by applicable Securities Laws, to an Acquisition Proposal that it determines is not a Company Superior Proposal, (ii) making disclosure to the Company Shareholders if the Company Board (after receiving advice from its external financial and legal advisors) shall have determined in good faith that the failure to make such disclosure would be expected to be inconsistent with its fiduciary duties or such disclosure is otherwise required by Law (it being understood that, notwithstanding the foregoing, any action that would otherwise constitute a Change in Recommendation hereunder shall constitute such a Change in Recommendation), (iii) calling and holding a meeting of Company Shareholders requisitioned by Company Shareholders in accordance with the BCBCA, or (iv) calling and holding a meeting of Company Shareholders ordered to be held by a court in accordance with Law. (e) Each successive amendment or modification of 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 Shareholders or other material terms or conditions thereof, shall constitute a new Acquisition Proposal for the purposes of this Section 7.4. (f) The Company shall ensure that the Representatives retained by the Company and/or its Subsidiaries in connection with the transactions contemplated by this Agreement are aware of the provisions of Section 7.1, and the Company shall be responsible for any breach of Section 7.1 by such Representatives. (g) If the Company provides Hudbay with the notice of an Acquisition Proposal contemplated in this Section 7.1 on a date that is less than five calendar days prior to the Company Meeting, the Company may (and, if requested by Hudbay, the Company shall) adjourn the Company Meeting to a date that is not less than seven calendar days and not more than 10 calendar days after the date scheduled for the Company Meeting, provided, however, that the Company Meeting shall not be adjourned or postponed to a date later than the seventh business day prior to the Outside Date.
Appears in 1 contract
Superior Proposals and Right to Match. (a) Notwithstanding anything to the contrary in any other provision of this Agreement, if, prior to the approval of the Arrangement Resolution by the Company ShareholdersSecurityholders, the Company receives a written Acquisition Proposal that the Company Board (after receiving advice consultation from its the Company’s legal and financial advisors and outside legal counseladvisors) determines in good faith constitutes a Company Superior Proposal, the Company Board may make a Company Change in Recommendation and/or enter into a definitive agreement (a "“Company Proposed Agreement"”) with respect to such Company Superior Proposal if and only if:
(i) such Acquisition Proposal did not result from a breach of Section 7.1 by the Company in any material respect;
(ii) the Person prior to making such Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with the a Company (it being acknowledged by Hudbay that the automatic termination or automatic release, Change in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the Recommendation and/or entering into and announcement of this Agreement shall not be a violation of this Section 7.4(a)(ii));
(iii) Company Proposed Agreement, the Company has provided Hudbay the Parent with a notice in writing (a "“Superior Proposal Notice"”), which notice shall contain (A) a statement as to the determination intention of the Company Board that to determine such Acquisition Proposal constitutes a Company Superior Proposal, (B) the value in financial terms that the Company Board has determined should be ascribed to any non-cash consideration offered under such Company Superior Proposal, (C) a copy of any Company Proposed Agreement relating to such Company Superior Proposal, and (D) copies of any material financing documents provided to the Company in connection therewith (with customary redactions);
(iviii) at least five business days (the "“Matching Period"”) shall have elapsed from the date that Xxxxxx the Parent received the Superior Proposal Notice from the Company;
(viv) during the Matching Period, Hudbay the Parent shall have had the opportunity (but not the obligation) to amend the terms of the Arrangement in accordance with Section 7.4(b);
(viv) after the Matching Period, the Company Board (after receiving advice from its consultation with the Company’s legal and financial advisors and outside legal counseladvisors) has determined in good faith that such Acquisition Proposal continues to constitute a Company Superior Proposal compared to any proposed amendments to the terms of the Arrangement by Xxxxxxthe Parent; and
(viivi) prior to or concurrently with entering into such Company Proposed Agreement, the Company shall have terminated this Agreement pursuant to Section 9.2(a)(iv)(D9.2(a)(iv)(C) and shall have paid to Hudbay the Parent the Company Termination Payment pursuant to Section 9.4(c)(ii).
. - 116 - (b) The Company acknowledges and agrees that, during the Matching Period or such longer period as the Company may approve for such purposePeriod, (i) Hudbay the Parent shall have the opportunity, but not the obligation, to propose to amend the terms of the Arrangement, (ii) the Company shall negotiate in good faith with Hudbay the Parent to enable Hudbay the Parent to make such amendments to the terms of the Arrangement as would enable Hudbay the Parent to proceed with the Arrangement and any related transactions on such amended terms, and (iii) the Company Board shall review any proposal by Hudbay the Parent to amend the terms of the Arrangement in order to determine in good faith whether such proposal would result in the Acquisition Proposal previously constituting a Company Superior Proposal ceasing to constitute a Company Superior Proposal compared to the proposed amendments to the terms of the Arrangement. If the Company Board determines that such Acquisition Proposal would cease to constitute a Company Superior Proposal as compared to the proposed amendments to the terms of the Arrangement, the Company and Hudbay the Parent will promptly amend this Agreement and the Plan of Arrangement to reflect such proposed amendments.
(c) The Company Board shall promptly reaffirm the Company Board Recommendation by press release after: (i) any Acquisition Proposal which the Company Board determines not to constitute a Company Superior Proposal is publicly announced; or (ii) the Company Board determines that a proposed amendment to the terms of the Arrangement pursuant to Section 7.4(b) would result in any Acquisition Proposal which has been publicly announced no longer constituting a Company Superior Proposal. Hudbay and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by the Company, acting reasonably.
(d) Nothing in this Agreement shall prevent the Company Board from (i) responding through a directors' circular or otherwise, only to the extent required by applicable Securities Laws, to an Acquisition Proposal that it determines is not a Company Superior Proposal, (ii) making disclosure to the Company Shareholders if the Company Board (after receiving advice from its external financial and legal advisors) shall have determined in good faith that the failure to make such disclosure would be expected to be inconsistent with its fiduciary duties or such disclosure is otherwise required by Law (it being understood that, notwithstanding the foregoing, any action that would otherwise constitute a Change in Recommendation hereunder shall constitute such a Change in Recommendation), (iii) calling and holding a meeting of Company Shareholders requisitioned by Company Shareholders in accordance with the BCBCA, or (iv) calling and holding a meeting of Company Shareholders ordered to be held by a court in accordance with Law.
(e) Each successive amendment or modification of 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 Shareholders or other material terms or conditions thereof, shall constitute a new Acquisition Proposal for the purposes of this Section 7.4.
(f) The Company shall ensure that the Representatives retained by the Company and/or its Subsidiaries in connection with the transactions contemplated by this Agreement are aware of the provisions of Section 7.1, and the Company shall be responsible for any breach of Section 7.1 by such Representatives.
(g) If the Company provides Hudbay with the notice of an Acquisition Proposal contemplated in this Section 7.1 on a date that is less than five calendar days prior to the Company Meeting, the Company may (and, if requested by Hudbay, the Company shall) adjourn the Company Meeting to a date that is not less than seven calendar days and not more than 10 calendar days after the date scheduled for the Company Meeting, provided, however, that the Company Meeting shall not be adjourned or postponed to a date later than the seventh business day prior to the Outside Date.
Appears in 1 contract
Superior Proposals and Right to Match. (a) Notwithstanding anything to the contrary in any other provision of this Agreement, if, prior to the approval of the Arrangement Resolution by the Company ShareholdersSecurityholders, the Company receives a written Acquisition Proposal that the Company Board (after receiving advice consultation from its the Company’s legal and financial advisors and outside legal counseladvisors) determines in good faith constitutes a Company Superior Proposal, the Company Board may make a Company Change in Recommendation and/or enter into a definitive agreement (a "“Company Proposed Agreement"”) with respect to such Company Superior Proposal if and only if:
(i) such Acquisition Proposal did not result from a breach of Section 7.1 by the Company in any material respect;
(ii) the Person prior to making such Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with the a Company (it being acknowledged by Hudbay that the automatic termination or automatic release, Change in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the Recommendation and/or entering into and announcement of this Agreement shall not be a violation of this Section 7.4(a)(ii));
(iii) Company Proposed Agreement, the Company has provided Hudbay the Parent with a notice in writing (a "“Superior Proposal Notice"”), which notice shall contain (A) a statement as to the determination intention of the Company Board that to determine such Acquisition Proposal constitutes a Company Superior Proposal, (B) the value in financial terms that the Company Board has determined should be ascribed to any non-cash consideration offered under such Company Superior Proposal, (C) a copy of any Company Proposed Agreement relating to such Company Superior Proposal, and (D) copies of any material financing documents provided to the Company in connection therewith (with customary redactions);
(iviii) at least five business days (the "“Matching Period"”) shall have elapsed from the date that Xxxxxx the Parent received the Superior Proposal Notice from the Company;
(viv) during the Matching Period, Hudbay the Parent shall have had the opportunity (but not the obligation) to amend the terms of the Arrangement in accordance with Section 7.4(b);
(viv) after the Matching Period, the Company Board (after receiving advice from its consultation with the Company’s legal and financial advisors and outside legal counseladvisors) has determined in good faith that such Acquisition Proposal continues to constitute a Company Superior Proposal compared to any proposed amendments to the terms of the Arrangement by Xxxxxxthe Parent; and
(viivi) prior to or concurrently with entering into such Company Proposed Agreement, the Company shall have terminated this Agreement pursuant to Section 9.2(a)(iv)(D9.2(a)(iv)(C) and shall have paid to Hudbay the Parent the Company Termination Payment pursuant to Section 9.4(c)(ii).
(b) The Company acknowledges and agrees that, during the Matching Period or such longer period as the Company may approve for such purposePeriod, (i) Hudbay the Parent shall have the opportunity, but not the obligation, to propose to amend the terms of the Arrangement, (ii) the Company shall negotiate in good faith with Hudbay the Parent to enable Hudbay the Parent to make such amendments to the terms of the Arrangement as would enable Hudbay the Parent to proceed with the Arrangement and any related transactions on such amended terms, and (iii) the Company Board shall review any proposal by Hudbay the Parent to amend the terms of the Arrangement in order to determine in good faith whether such proposal would result in the Acquisition Proposal previously constituting a Company Superior Proposal ceasing to constitute a Company Superior Proposal compared to the proposed amendments to the terms of the Arrangement. If the Company Board determines that such Acquisition Proposal would cease to constitute a Company Superior Proposal as compared to the proposed amendments to the terms of the Arrangement, the Company and Hudbay the Parent will promptly amend this Agreement and the Plan of Arrangement to reflect such proposed amendments.
(c) The Company Board shall promptly reaffirm the Company Board Recommendation by press release after: (i) any Acquisition Proposal which the Company Board determines not to constitute a Company Superior Proposal is publicly announced; or (ii) the Company Board determines that a proposed amendment to the terms of the Arrangement pursuant to Section 7.4(b) would result in any Acquisition Proposal which has been publicly announced no longer constituting a Company Superior Proposal. Hudbay The Parent and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by the Company, acting reasonably.
(d) Nothing contained in this Agreement shall prevent prohibit the Company Board from (i) responding through a directors' ’ circular or otherwise, only to the extent otherwise as required by applicable Securities Laws, Laws to an Acquisition Proposal that it determines is not a Company Superior Proposal, Proposal if: (iii) making disclosure to in the good faith judgment of the Company Shareholders if the Company Board (Board, after receiving advice from its external financial and consultation with outside legal advisors) shall have determined in good faith that the counsel, failure to make such disclosure would be expected to be inconsistent with its fiduciary duties under applicable Law, (ii) the Company provides each of the Parent and its legal counsel with a reasonable opportunity to review and comment on the form and content of any such disclosure, including but not limited to the directors’ circular or otherwise, and (iii) the Company considers all reasonable amendments to such disclosure is otherwise required as requested by Law the Parent and its legal counsel, acting reasonably. Nothing in this Agreement shall prevent the Company Board from (it being understood that, notwithstanding the foregoing, any action that would otherwise constitute a Change in Recommendation hereunder shall constitute such a Change in Recommendation), (iiii) calling and holding a meeting of Company Shareholders requisitioned by Company Shareholders in accordance with the BCBCA, or (ivii) calling and holding a meeting of Company Shareholders ordered to be held by a court in accordance with Law.
(e) Each successive amendment or modification of 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 Shareholders or other material terms or conditions thereof, shall constitute a new Acquisition Proposal for the purposes of this Section 7.4.
7.4 (f) The Company shall ensure except that the Representatives retained by the Company and/or its Subsidiaries Matching Period in connection with the transactions contemplated by this Agreement are aware respect of the provisions of Section 7.1, and the Company any such successive amendment or modification shall be responsible for any breach of Section 7.1 by such Representativestwo business days).
(g) If the Company provides Hudbay with the notice of an Acquisition Proposal contemplated in this Section 7.1 on a date that is less than five calendar days prior to the Company Meeting, the Company may (and, if requested by Hudbay, the Company shall) adjourn the Company Meeting to a date that is not less than seven calendar days and not more than 10 calendar days after the date scheduled for the Company Meeting, provided, however, that the Company Meeting shall not be adjourned or postponed to a date later than the seventh business day prior to the Outside Date.
Appears in 1 contract
Superior Proposals and Right to Match. (a) Notwithstanding anything to the contrary in this Agreement, if, prior to the approval of the Arrangement Share Issuance Resolution by the Company Hudbay Shareholders, the Company Xxxxxx receives a written Acquisition Proposal that the Company Hudbay Board (after receiving advice from its financial advisors and outside legal counsel) determines in good faith constitutes a Company Hudbay Superior Proposal, the Company Hudbay Board may make a Hudbay Change in Recommendation and/or enter into a definitive agreement (a "Hudbay Proposed Agreement") with respect to such Company Hudbay Superior Proposal if and only if:
(i) such Acquisition Proposal did not result from a breach of Section 7.1 8.1 by the Company Hudbay in any material respect;
(ii) the Person making such Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with the Company Hudbay (it being acknowledged by Hudbay the Company that the automatic termination or automatic release, in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the entering into and announcement of this Agreement shall not be a violation of this Section 7.4(a)(ii8.4(a)(ii));
(iii) Hudbay has provided the Company has provided Hudbay with a notice in writing (a "Hudbay Superior Proposal Notice"), which notice shall contain (A) the determination of the Company Hudbay Board that such Acquisition Proposal constitutes a Company Hudbay Superior Proposal, (B) the value in financial terms that the Company Hudbay Board has determined should be ascribed to any non-cash consideration offered under such Company Hudbay Superior Proposal, (C) a copy of any Hudbay Proposed Agreement relating to such Company Hudbay Superior Proposal, and (D) copies of any material financing documents provided to the Company Hudbay in connection therewith (with customary redactions);
(iv) at least five business days (the "Hudbay Matching Period") shall have elapsed from the date that Xxxxxx the Company received the Hudbay Superior Proposal Notice from the CompanyHudbay;
(v) during the Hudbay Matching Period, Hudbay the Company shall have had the opportunity (but not the obligation) to amend the terms of the Arrangement in accordance with Section 7.4(b8.4(b);
(vi) after the Hudbay Matching Period, the Company Hudbay Board (after receiving advice from its financial advisors and outside legal counsel) has determined in good faith that such Acquisition Proposal continues to constitute a Company Hudbay Superior Proposal compared to any proposed amendments to the terms of the Arrangement by Xxxxxxthe Company; and
(vii) prior to or concurrently with entering into such Hudbay Proposed Agreement, the Company Hudbay shall have terminated this Agreement pursuant to Section 9.2(a)(iv)(D9.2(a)(iii)(D) and shall have paid to Hudbay the Company the Hudbay Termination Payment pursuant to Section 9.4(c)(ii9.4(e)(ii).
(b) The Company Hudbay acknowledges and agrees that, during the Hudbay Matching Period or such longer period as the Company Hudbay may approve for such purpose, (i) Hudbay the Company shall have the opportunity, but not the obligation, to propose to amend the terms of the Arrangement, (ii) the Company Hudbay shall negotiate in good faith with Hudbay the Company to enable Hudbay the Company to make such amendments to the terms of the Arrangement as would enable Hudbay to proceed with the Arrangement and any related transactions on such amended terms, and (iii) the Company Hudbay Board shall review any proposal by Hudbay Xxxxxx to amend the terms of the Arrangement in order to determine in good faith whether such proposal would result in the Acquisition Proposal previously constituting a Company Hudbay Superior Proposal ceasing to constitute a Company Hudbay Superior Proposal compared to the proposed amendments to the terms of the Arrangement. If the Company Hudbay Board determines that such Acquisition Proposal would cease to constitute a Company Hudbay Superior Proposal as compared to the proposed amendments to the terms of the Arrangement, Hudbay and the Company and Hudbay will promptly amend this Agreement and the Plan of Arrangement to reflect such proposed amendments.
(c) The Company Hudbay Board shall promptly reaffirm the Company Hudbay Board Recommendation by press release after: (i) any Acquisition Proposal which the Company Hudbay Board determines not to constitute a Company Hudbay Superior Proposal is publicly announced; or (ii) the Company Hudbay Board determines that a proposed amendment to the terms of the Arrangement pursuant to Section 7.4(b8.4(b) would result in any Acquisition Proposal which has been publicly announced no longer constituting a Company Hudbay Superior Proposal. Hudbay The Company and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by the CompanyXxxxxx, acting reasonably.
(d) Nothing in this Agreement shall prevent the Company Hudbay Board from (i) responding through a directors' circular or otherwise, only to the extent required by applicable Securities Laws, to an Acquisition Proposal that it determines is not a Company Hudbay Superior Proposal, (ii) making disclosure to the Company Hudbay Shareholders if the Company Hudbay Board (after receiving advice from its external financial and legal advisors) shall have determined in good faith that the failure to make such disclosure would be expected to be inconsistent with its fiduciary duties or such disclosure is otherwise required by Law (it being understood that, notwithstanding the foregoing, any action that would otherwise constitute a Hudbay Change in Recommendation hereunder shall constitute such a Hudbay Change in Recommendation), (iii) calling and holding a meeting of Company Hudbay Shareholders requisitioned by Company Hudbay Shareholders in accordance with the BCBCACanada Business Corporations Act, or (iv) calling and holding a meeting of Company Hudbay Shareholders ordered to be held by a court in accordance with Law.
(e) Each successive amendment or modification of 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 Hudbay Shareholders or other material terms or conditions thereof, shall constitute a new Acquisition Proposal for the purposes of this Section 7.48.4.
(f) The Company Hudbay shall ensure that the Representatives retained by the Company and/or its Subsidiaries in connection with the transactions contemplated by this Agreement are aware of the provisions of Section 7.18.1, and the Company Hudbay shall be responsible for any breach of Section 7.1 8.1 by such Representatives.
(g) If Hudbay provides the Company provides Hudbay with the notice of an Acquisition Proposal contemplated in this Section 7.1 8.1 on a date that is less than five calendar days prior to the Company Hudbay Meeting, the Company Hudbay may (and, if requested by Hudbaythe Company, the Company Hudbay shall) adjourn the Company Hudbay Meeting to a date that is not less than seven calendar days and not more than 10 calendar days after the date scheduled for the Company Hudbay Meeting, provided, however, that the Company Hudbay Meeting shall not be adjourned or postponed to a date later than the seventh business day prior to the Outside Date.
Appears in 1 contract
Superior Proposals and Right to Match. (a) Notwithstanding anything to the contrary in any other provision of this Agreement, if, prior to the approval of the Arrangement Resolution by the Company ShareholdersParent Stockholder Approvals, the Company Parent receives a written Acquisition Proposal that the Company Parent Board (after receiving advice from its consultation with the Parent’s legal and financial advisors and outside legal counseladvisors) determines in good faith constitutes a Company Parent Superior Proposal, the Company Parent Board may make a Parent Change in Recommendation and/or enter into a definitive agreement (a "“Parent Proposed Agreement"”) with respect to such Company Parent Superior Proposal if and only if:
(i) such Acquisition Proposal did not result from a breach of Section 7.1 8.1 by the Company Parent in any material respect;
(ii) prior to making a Parent Company Change in Recommendation and/or entering into a Parent Proposed Agreement, the Person making such Acquisition Proposal was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill, non-solicitation or similar agreement with Parent has provided the Company (it being acknowledged by Hudbay that the automatic termination or automatic release, in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the entering into and announcement of this Agreement shall not be a violation of this Section 7.4(a)(ii));
(iii) the Company has provided Hudbay with a notice in writing (a "“Parent Superior Proposal Notice"”), which notice shall contain (A) a statement as to the determination intention of the Company Parent Board that to determine such Acquisition Proposal constitutes a Company Parent Superior Proposal, (B) the value in financial terms that the Company Parent Board has determined should be ascribed to any non-cash consideration offered under such Company Parent Superior Proposal, (C) a copy of any Parent Proposed Agreement relating to such Company Parent Superior Proposal, and (D) copies of any material financing documents provided to the Company Parent in connection therewith (with customary redactions);
(iviii) at least five business days (the "“Parent Matching Period"”) shall have elapsed from the date that Xxxxxx the Company received the Parent Superior Proposal Notice from the CompanyParent;
(viv) during the Parent Matching Period, Hudbay the Company shall have had the opportunity (but not the obligation) to amend the terms of the Arrangement in accordance with Section 7.4(b8.4(b);
(viv) after the Parent Matching Period, the Company Parent Board (after receiving advice from its consultation with the Parent’s legal and financial advisors and outside legal counseladvisors) has determined in good faith that such Acquisition Proposal continues to constitute a Company Parent Superior Proposal compared to any proposed amendments to the terms of the Arrangement by Xxxxxxthe Company; and
(viivi) prior to or concurrently with entering into such Parent Proposed Agreement, the Company Parent shall have terminated this Agreement pursuant to Section 9.2(a)(iv)(D9.2(a)(iii)(C) and shall have paid to Hudbay the Company the Parent Termination Payment pursuant to Section 9.4(c)(ii9.4(e)(ii).
(b) The Company Parent acknowledges and agrees that, during the Parent Matching Period or such longer period as the Company may approve for such purposePeriod, (i) Hudbay the Company shall have the opportunity, but not the obligation, to propose to amend the terms of the Arrangement, (ii) the Company Parent shall negotiate in good faith with Hudbay the Company to enable Hudbay the Company to make such amendments to the terms of the Arrangement as would enable Hudbay the Parent to proceed with the Arrangement and any related transactions on such amended terms, and (iii) the Company Parent Board shall review any proposal by Hudbay the Parent to amend the terms of the Arrangement in order to determine in good faith whether such proposal would result in the Acquisition Proposal previously constituting a Company Parent Superior Proposal ceasing to constitute a Company Parent Superior Proposal compared to the proposed amendments to the terms of the Arrangement. If the Company Parent Board determines that such Acquisition Proposal would cease to constitute a Company Parent Superior Proposal as compared to the proposed amendments to the terms of the Arrangement, the Parent and the Company and Hudbay will promptly amend this Agreement and the Plan of Arrangement to reflect such proposed amendments.
(c) The Company Parent Board shall promptly reaffirm the Company Parent Board Recommendation by press release after: (i) any Acquisition Proposal which the Company Parent Board determines not to constitute a Company Parent Superior Proposal is publicly announced; or (ii) the Company Parent Board determines that a proposed amendment to the terms of the Arrangement pursuant to Section 7.4(b8.4(b) would result in any Acquisition Proposal which has been publicly announced no longer constituting a Company Parent Superior Proposal. Hudbay The Company and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by the CompanyParent, acting reasonably.
(d) Nothing in this Agreement shall prevent the Company Parent Board from (i) responding through a directors' circular or otherwise, only to the extent required by applicable Securities Laws, to an Acquisition Proposal that it determines is not a Company Superior Proposal, (ii) making disclosure to the Company Shareholders if the Company Board (after receiving advice from its external financial and legal advisors) shall have determined in good faith that the failure to make such disclosure would be expected to be inconsistent with its fiduciary duties or such disclosure is otherwise required by Law (it being understood that, notwithstanding the foregoing, any action that would otherwise constitute a Change in Recommendation hereunder shall constitute such a Change in Recommendation), (iii) calling and holding a meeting of Company Shareholders the Parent Stockholders requisitioned by Company Shareholders the Parent Stockholders in accordance with the BCBCAParent’s constating documents, or (ivii) calling and holding a meeting of Company Shareholders the Parent Stockholders ordered to be held by a court in accordance with Law, (iii) disclosing to the Parent Stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or other disclosure required to be made in the Parent Proxy Statement by applicable laws, and (iv) making any “stop, look and listen” communication to the Parent Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or any similar statement in response to any publicly disclosed Acquisition Proposal; provided that any “stop, look and listen” statement, or any such similar statement also includes an express reaffirmation of the Parent Board Recommendation.
(e) Each successive amendment or modification of 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 Shareholders Parent Stockholders or other material terms or conditions thereof, shall constitute a new Acquisition Proposal for the purposes of this Section 7.4.
8.4 (f) The Company shall ensure except that the Representatives retained by the Company and/or its Subsidiaries Matching Period in connection with the transactions contemplated by this Agreement are aware respect of the provisions of Section 7.1, and the Company any such successive amendment or modification shall be responsible for any breach of Section 7.1 by such Representativestwo business days).
(g) If the Company provides Hudbay with the notice of an Acquisition Proposal contemplated in this Section 7.1 on a date that is less than five calendar days prior to the Company Meeting, the Company may (and, if requested by Hudbay, the Company shall) adjourn the Company Meeting to a date that is not less than seven calendar days and not more than 10 calendar days after the date scheduled for the Company Meeting, provided, however, that the Company Meeting shall not be adjourned or postponed to a date later than the seventh business day prior to the Outside Date.
Appears in 1 contract
