Preparation of Company Circular and the Purchaser Proxy Statement. (a) Promptly following the entry into this Agreement, the Company shall prepare, together with any other documents required by the BCBCA, Securities Laws and all other applicable Laws, and shall use its commercially reasonable efforts to cause to be filed with the TSX, the NYSE and the Securities Authorities as promptly as practicable after obtaining the Interim Order (with the making of such filing subject to the Purchaser furnishing the information required under Section 2.6(e) and the Purchaser not otherwise failing to perform any of its covenants or agreements or breaching any of its representations and warranties in any material respect under this Agreement), the Company Circular relating to matters to be submitted to the Company Shareholders at the Company Meeting. Subject to Section 2.6(e), the Company shall use commercially reasonable efforts to cause the Company Circular to comply as to form and substance in all material respects with Securities Laws and any other requirements of applicable Law, and to respond as promptly as practicable to any comments of the TSX, the NYSE, Securities Authorities and their respective staff. The Company will advise the Purchaser promptly after it receives any request by the TSX, the NYSE or Securities Authorities to amend the Company Circular or receives any comments thereon and responses thereto or any request by the TSX, the NYSE or Securities Authorities for additional information, and shall provide the Purchaser with copies of all substantive correspondence that is provided by or on behalf of it, on one hand, and by any of the TSX, the NYSE or Securities Authorities, on the other hand. The Company shall use its commercially reasonable efforts to resolve any comments from the TSX, the NYSE and Securities Authorities with respect to the Company Circular as promptly as reasonably practicable after receipt thereof. The Company agrees to permit the Purchaser (to the extent applicable) and its counsel, to participate in all substantive meetings and conferences with the TSX, the NYSE or Securities Authorities with respect to the foregoing matters. Notwithstanding the foregoing, prior to filing or mailing the Company Circular (or any amendment or supplement thereto) or responding to any substantive comments of the TSX, the NYSE or Securities Authorities with respect thereto, the Company will (i) provide the Purchaser with a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) consider in good faith for inclusion in such document or response all comments reasonably and promptly proposed by the Purchaser and (iii) not file or mail such document or respond to the TSX, the NYSE or Securities Authorities prior to receiving the written approval of the Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed. (b) Promptly following the entry into this Agreement, the Purchaser shall prepare, together with any other documents required by U.S. Securities Laws and all other applicable Laws, and shall use its commercially reasonable efforts to cause to be filed with the U.S. SEC as promptly as practicable following the execution of this Agreement (with the making of such filing subject to the Company furnishing the information required under Section 2.6(f) and the Company not otherwise failing to perform any of its covenants or agreements or breaching any of its representations and warranties in any material respect under this Agreement), the Purchaser Proxy Statement relating to matters to be submitted to the Purchaser Stockholders at the Purchaser Meeting. Subject to Section 2.6(f), the Purchaser shall use commercially reasonable efforts to cause the Purchaser Proxy Statement to comply as to form and substance in all material respects with the rules and regulations promulgated by the U.S. SEC and the requirements of applicable Law, and to respond as promptly as practicable to any comments of the U.S. SEC or its staff. The Purchaser will advise the Company promptly after it receives any request by the U.S. SEC for amendment of the Purchaser Proxy Statement or receives any comments thereon and responses thereto or any request by the U.S. SEC for additional information, and the Purchaser shall provide the Company with copies of all substantive correspondence that is provided by or on behalf of it, on one hand, and by the U.S. SEC on the other hand. The Purchaser shall use its commercially reasonable efforts to resolve any comments from the U.S. SEC with respect to the Purchaser Proxy Statement as promptly as reasonably practicable after receipt thereof. The Purchaser agrees to permit the Company (to the extent practicable) and its counsel, to participate in all substantive meetings and conferences with the U.S. SEC with respect to the foregoing matters. Notwithstanding the foregoing, prior to filing or mailing the Purchaser Proxy Statement (or any amendment or supplement thereto) or responding in writing to any substantive comments of the U.S. SEC with respect thereto, the Purchaser will (A) provide the Company with a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (B) consider in good faith for inclusion in such document or response all comments reasonably and promptly proposed by the Company, and (C) not file or mail such document or respond to the U.S. SEC prior to receiving the written approval of the Company, which approval shall not be unreasonably withheld, conditioned or delayed. (c) The Company Circular shall: (i) include copies of the Company Fairness Opinion and Company Special Committee Fairness Opinions; (ii) state that (A) the Company Special Committee has received the Company Special Committee Fairness Opinions, and (B) the Company Board has received the Company Fairness Opinion and the recommendation of the Company Special Committee, and, subject to the terms of this Agreement, has unanimously determined, after receiving legal and financial advice, that the Arrangement and entry into this Agreement are in the best interests of the Company; (iii), subject to the terms of this Agreement, contain the unanimous recommendation of the Company Board (subject to any abstentions due to a director having a “disclosable interest” within the meaning of the BCBCA) to Company Shareholders that they vote in favour of the Arrangement Resolution; and (iv) include statements that each of the directors and senior officers of the Company has signed a Company Voting Agreement, pursuant to which, and subject to the terms thereof, they have agreed to, among other things, vote their Company Shares in favour of the Arrangement Resolution. (d) The Purchaser Proxy Statement shall: (i) state that the Purchaser Board has evaluated the Arrangement in consultation with Purchaser’s management and legal and financial advisors, and has unanimously determined that the Arrangement and entry into this Agreement are in the best interests of the Purchaser; (ii) subject to the terms of this Agreement, contain the unanimous recommendation of the Purchaser Board to Purchaser Stockholders that they vote in favour of the Purchaser Stock Issuance; (iii) include a copy of the separate opinions of Scotiabank and R▇▇▇▇▇▇ J▇▇▇▇ to the Purchaser Board; and (iv) include statements that each of the directors and senior officers of the Purchaser has signed a Purchaser Voting Agreement, pursuant to which, and subject to the terms thereof, they have agreed to, among other things, vote their Purchaser Shares in favour of the Purchaser Stock Issuance. (e) The Purchaser will promptly furnish to the Company such data and information relating to it, its Subsidiaries, the Consideration Shares and the holders of its capital stock, as is required by applicable Laws and as the Company may reasonably request for the purpose of including such data and information in the Company Circular and any amendments or supplements thereto, including any information required for the preparation by the Purchaser of any pro forma financial statements and other information relating to the Purchaser following completion of the Arrangement. The Purchaser shall ensure that such information does not include any misrepresentation concerning the Purchaser, its Subsidiaries, the Consideration Shares and the holders of its capital stock, and will indemnify the Company for all claims, losses, costs and expenses incurred by the Company in respect of any such misrepresentation contained in any information regarding the Purchaser, its Subsidiaries, the Consideration Shares and the holders of its capital stock included in the Company Circular that was provided by the Purchaser expressly for inclusion in the Company Circular pursuant to this Section 2.6(e). The Purchaser shall use commercially reasonable efforts to obtain any necessary consents from any of its auditors or other advisors to the use of any financial, technical or other expert information required to be included in the Company Circular relating to it or its Subsidiaries and to the identification in the Company Circular of each such advisor. (f) The Company will promptly furnish to the Purchaser such data and information relating to it, its Subsidiaries and the Company Shareholders, as is required by applicable Laws and as the Purchaser may reasonably request for the purpose of including such data and information in the Purchaser Proxy Statement and any amendments or supplements thereto, including any information required for the preparation by the Purchaser of any pro forma financial statements. The Company shall ensure that such information does not include any misrepresentation concerning the Company, its Subsidiaries and the Company Shareholders, and will indemnify the Purchaser for all claims, losses, costs and expenses incurred by the Purchaser in respect of any such misrepresentation contained in any information regarding the Company, its Subsidiaries and the Company Shareholders included in the Purchaser Proxy Statement that was provided by the Company expressly for inclusion in the Purchaser Proxy Statement pursuant to this Section 2.6(f). The Company shall use commercially reasonable efforts to obtain any necessary consents from any of its auditors or other advisors to the use of any financial, technical or other expert information required to be included in the Purchaser Proxy Statement relating to it or its Subsidiaries and to the identification in the Purchaser Proxy Statement of each such advisor. (g) The Purchaser and the Company shall each use commercially reasonable efforts to coordinate with each other to prepare common disclosure that will be included in both the Company Circular and the Purchaser Proxy Statement, and shall, to the extent reasonably practicable, provide that such disclosure is generally consistent as between the Company Circular and the Purchaser Proxy Statement. (h) The Purchaser and the Company shall make all necessary filings with respect to the Arrangement under the U.S. Securities Act and the U.S. Exchange Act and applicable blue sky laws and the rules and regulations thereunder. Each Party will advise the other, promptly after it receives notice thereof, of the issuance of any stop order, or the suspension of the qualification of the Consideration Shares issuable in connection with the Arrangement for offering or sale in any jurisdiction. Each of the Company and the Purchaser will use best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. (i) If at any time prior to the Effective Time, any information relating to the Purchaser or the Company, or any of their respective affiliates, officers or directors, should be discovered by the Company or the Purchaser that should be set forth in an amendment or supplement to either of the Company Circular or the Purchaser Proxy Statement, so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Party and an appropriate amendment or supplement describing such information shall be promptly filed with the U.S. SEC, the Canadian Securities Authorities or any other Governmental Entity as required, as applicable, and, to the extent required by applicable Law, disseminated to the Company Shareholders or the Purchaser Stockholders, as applicable.
Appears in 1 contract
Preparation of Company Circular and the Purchaser Proxy Statement. (a) Promptly following the entry into this Agreement, the Company shall prepare, together with any other documents required by the BCBCA, Securities Laws and all other applicable Laws, and shall use its commercially reasonable efforts to cause to be filed with the TSX, the NYSE and the Securities Authorities as promptly as practicable after obtaining the Interim Order (with the making of such filing subject to the Purchaser furnishing the information required under Section 2.6(e) and the Purchaser not otherwise failing to perform any of its covenants or agreements or breaching any of its representations and warranties in any material respect under this Agreement), the Company Circular relating to matters to be submitted to the Company Shareholders at the Company Meeting. Subject to Section 2.6(e), the Company shall use commercially reasonable efforts to cause the Company Circular to comply as to form and substance in all material respects with Securities Laws and any other requirements of applicable Law, and to respond as promptly as practicable to any comments of the TSX, the NYSE, Securities Authorities and their respective staff. The Company will advise the Purchaser promptly after it receives any request by the TSX, the NYSE or Securities Authorities to amend the Company Circular or receives any comments thereon and responses thereto or any request by the TSX, the NYSE or Securities Authorities for additional information, and shall provide the Purchaser with copies of all substantive correspondence that is provided by or on behalf of it, on one hand, and by any of the TSX, the NYSE or Securities Authorities, on the other hand. The Company shall use its commercially reasonable efforts to resolve any comments from the TSX, the NYSE and Securities Authorities with respect to the Company Circular as promptly as reasonably practicable after receipt thereof. The Company agrees to permit the Purchaser (to the extent applicable) and its counsel, to participate in all substantive meetings and - 38 - conferences with the TSX, the NYSE or Securities Authorities with respect to the foregoing matters. Notwithstanding the foregoing, prior to filing or mailing the Company Circular (or any amendment or supplement thereto) or responding to any substantive comments of the TSX, the NYSE or Securities Authorities with respect thereto, the Company will (i) provide the Purchaser with a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) consider in good faith for inclusion in such document or response all comments reasonably and promptly proposed by the Purchaser and (iii) not file or mail such document or respond to the TSX, the NYSE or Securities Authorities prior to receiving the written approval of the Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed.
(b) Promptly following the entry into this Agreement, the Purchaser shall prepare, together with any other documents required by U.S. Securities Laws and all other applicable Laws, and shall use its commercially reasonable efforts to cause to be filed with the U.S. SEC as promptly as practicable following the execution of this Agreement (with the making of such filing subject to the Company furnishing the information required under Section 2.6(f) and the Company not otherwise failing to perform any of its covenants or agreements or breaching any of its representations and warranties in any material respect under this Agreement), the Purchaser Proxy Statement relating to matters to be submitted to the Purchaser Stockholders at the Purchaser Meeting. Subject to Section 2.6(f), the Purchaser shall use commercially reasonable efforts to cause the Purchaser Proxy Statement to comply as to form and substance in all material respects with the rules and regulations promulgated by the U.S. SEC and the requirements of applicable Law, and to respond as promptly as practicable to any comments of the U.S. SEC or its staff. The Purchaser will advise the Company promptly after it receives any request by the U.S. SEC for amendment of the Purchaser Proxy Statement or receives any comments thereon and responses thereto or any request by the U.S. SEC for additional information, and the Purchaser shall provide the Company with copies of all substantive correspondence that is provided by or on behalf of it, on one hand, and by the U.S. SEC on the other hand. The Purchaser shall use its commercially reasonable efforts to resolve any comments from the U.S. SEC with respect to the Purchaser Proxy Statement as promptly as reasonably practicable after receipt thereof. The Purchaser agrees to permit the Company (to the extent practicable) and its counsel, to participate in all substantive meetings and conferences with the U.S. SEC with respect to the foregoing matters. Notwithstanding the foregoing, prior to filing or mailing the Purchaser Proxy Statement (or any amendment or supplement thereto) or responding in writing to any substantive comments of the U.S. SEC with respect thereto, the Purchaser will (A) provide the Company with a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (B) consider in good faith for inclusion in such document or response all comments reasonably and promptly proposed by the Company, and (C) not file or mail such document or respond to the U.S. SEC prior to receiving the written approval of the Company, which approval shall not be unreasonably withheld, conditioned or delayed.. - 39 -
(c) The Company Circular shall: (i) include copies of the Company Fairness Opinion and Company Special Committee Fairness Opinions; (ii) state that (A) the Company Special Committee has received the Company Special Committee Fairness Opinions, and (B) the Company Board has received the Company Fairness Opinion and the recommendation of the Company Special Committee, and, subject to the terms of this Agreement, has unanimously determined, after receiving legal and financial advice, that the Arrangement and entry into this Agreement are in the best interests of the Company; (iii), subject to the terms of this Agreement, contain the unanimous recommendation of the Company Board (subject to any abstentions due to a director having a “disclosable interest” within the meaning of the BCBCA) to Company Shareholders that they vote in favour of the Arrangement Resolution; and (iv) include statements that each of the directors and senior officers of the Company has signed a Company Voting Agreement, pursuant to which, and subject to the terms thereof, they have agreed to, among other things, vote their Company Shares in favour of the Arrangement Resolution.
(d) The Purchaser Proxy Statement shall: (i) state that the Purchaser Board has evaluated the Arrangement in consultation with Purchaser’s management and legal and financial advisors, and has unanimously determined that the Arrangement and entry into this Agreement are in the best interests of the Purchaser; (ii) subject to the terms of this Agreement, contain the unanimous recommendation of the Purchaser Board to Purchaser Stockholders that they vote in favour of the Purchaser Stock Issuance; (iii) include a copy of the separate opinions of Scotiabank and R▇▇▇▇▇▇▇ J▇▇▇▇▇ to the Purchaser Board; and (iv) include statements that each of the directors and senior officers of the Purchaser has signed a Purchaser Voting Agreement, pursuant to which, and subject to the terms thereof, they have agreed to, among other things, vote their Purchaser Shares in favour of the Purchaser Stock Issuance.
(e) The Purchaser will promptly furnish to the Company such data and information relating to it, its Subsidiaries, the Consideration Shares and the holders of its capital stock, as is required by applicable Laws and as the Company may reasonably request for the purpose of including such data and information in the Company Circular and any amendments or supplements thereto, including any information required for the preparation by the Purchaser of any pro forma financial statements and other information relating to the Purchaser following completion of the Arrangement. The Purchaser shall ensure that such information does not include any misrepresentation concerning the Purchaser, its Subsidiaries, the Consideration Shares and the holders of its capital stock, and will indemnify the Company for all claims, losses, costs and expenses incurred by the Company in respect of any such misrepresentation contained in any information regarding the Purchaser, its Subsidiaries, the Consideration Shares and the holders of its capital stock included in the Company Circular that was provided by the Purchaser expressly for inclusion in the Company Circular pursuant to this Section 2.6(e). The Purchaser shall use commercially reasonable efforts to obtain any necessary consents from any of its auditors or other advisors to the use of any financial, technical or other expert information required to be - 40 - included in the Company Circular relating to it or its Subsidiaries and to the identification in the Company Circular of each such advisor.
(f) The Company will promptly furnish to the Purchaser such data and information relating to it, its Subsidiaries and the Company Shareholders, as is required by applicable Laws and as the Purchaser may reasonably request for the purpose of including such data and information in the Purchaser Proxy Statement and any amendments or supplements thereto, including any information required for the preparation by the Purchaser of any pro forma financial statements. The Company shall ensure that such information does not include any misrepresentation concerning the Company, its Subsidiaries and the Company Shareholders, and will indemnify the Purchaser for all claims, losses, costs and expenses incurred by the Purchaser in respect of any such misrepresentation contained in any information regarding the Company, its Subsidiaries and the Company Shareholders included in the Purchaser Proxy Statement that was provided by the Company expressly for inclusion in the Purchaser Proxy Statement pursuant to this Section 2.6(f). The Company shall use commercially reasonable efforts to obtain any necessary consents from any of its auditors or other advisors to the use of any financial, technical or other expert information required to be included in the Purchaser Proxy Statement relating to it or its Subsidiaries and to the identification in the Purchaser Proxy Statement of each such advisor.
(g) The Purchaser and the Company shall each use commercially reasonable efforts to coordinate with each other to prepare common disclosure that will be included in both the Company Circular and the Purchaser Proxy Statement, and shall, to the extent reasonably practicable, provide that such disclosure is generally consistent as between the Company Circular and the Purchaser Proxy Statement.
(h) The Purchaser and the Company shall make all necessary filings with respect to the Arrangement under the U.S. Securities Act and the U.S. Exchange Act and applicable blue sky laws and the rules and regulations thereunder. Each Party will advise the other, promptly after it receives notice thereof, of the issuance of any stop order, or the suspension of the qualification of the Consideration Shares issuable in connection with the Arrangement for offering or sale in any jurisdiction. Each of the Company and the Purchaser will use best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated.
(i) If at any time prior to the Effective Time, any information relating to the Purchaser or the Company, or any of their respective affiliates, officers or directors, should be discovered by the Company or the Purchaser that should be set forth in an amendment or supplement to either of the Company Circular or the Purchaser Proxy Statement, so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Party and an appropriate amendment or supplement describing such information shall be promptly filed with the U.S. SEC, the Canadian Securities - 41 - Authorities or any other Governmental Entity as required, as applicable, and, to the extent required by applicable Law, disseminated to the Company Shareholders or the Purchaser Stockholders, as applicable.
Appears in 1 contract