THE OFFEROR TO TAKE UP AND PAY FOR SHARES DEPOSITED UNDER THE OFFER, THEN,
PROVIDED THAT SUCH INJUNCTION OR ORDER IS BEING CONTESTED OR APPEALED OR SUCH
REGULATORY WAIVER, CONSENT OR APPROVAL IS BEING ACTIVELY SOUGHT, AS APPLICABLE,
THIS AGREEMENT SHALL NOT BE TERMINATED BY THE COMPANY PURSUANT TO THIS SECTION
8.1 UNTIL THE EARLIER OF (A) 110 DAYS AFTER THE OFFER IS COMMENCED AND (B) THE
TENTH BUSINESS DAY FOLLOWING THE DATE ON WHICH SUCH INJUNCTION OR ORDER CEASES
TO BE IN EFFECT OR SUCH WAIVER, CONSENT OR APPROVAL IS OBTAINED, AS APPLICABLE;
(C)
BY THE OFFEROR, IF ANY CONDITION OF THE
OFFER SET FORTH IN SCHEDULE A IS NOT SATISFIED OR WAIVED BY THE EXPIRY DATE;
(D)
BY THE OFFEROR IF: (I) THE BOARD OF
DIRECTORS OF THE COMPANY OR ANY COMMITTEE THEREOF WITHDRAWS, MODIFIES OR CHANGES
ITS RECOMMENDATION IN FAVOUR OF THE OFFER; OR (II) THE BOARD OF DIRECTORS OR ANY
COMMITTEE THEREOF APPROVES OR RECOMMENDS ACCEPTANCE OF AN ALTERNATIVE
TRANSACTION;
35
(E)
BY THE OFFEROR, IF THE BOARD OF DIRECTORS
OR ANY COMMITTEE THEREOF FAILS TO PUBLICLY AFFIRM ITS APPROVAL OR RECOMMENDATION
OF THE OFFER WITHIN TWO BUSINESS DAYS OF ANY WRITTEN REQUEST TO DO SO FROM THE
OFFEROR;
(F)
BY THE COMPANY, IF THE COMPANY, HAVING
COMPLIED WITH THE REQUIREMENTS OF SECTION 2.5 AND PROVIDED THAT THE COMPANY HAS
NOT BREACHED ANY OF ITS COVENANTS, AGREEMENTS OR OBLIGATIONS IN THIS AGREEMENT,
PROPOSES TO ENTER INTO A DEFINITIVE AGREEMENT WITH RESPECT TO A SUPERIOR
PROPOSAL, PROVIDED THAT THE COMPANY HAS PREVIOUSLY OR CONCURRENTLY WILL HAVE
PAID THE PARENT THE NON-COMPLETION FEE;
(G)
BY EITHER THE OFFEROR OR THE COMPANY, IF THE
OFFEROR HAS BEEN NOTIFIED IN WRITING BY THE COMPANY OF AN ALTERNATIVE
TRANSACTION IN ACCORDANCE WITH SECTION 2.5 AND: (I) THE OFFEROR DOES NOT AMEND
THE OFFER WITHIN THE TIME CONTEMPLATED FOR PROVIDING THE NOTICE UNDER SECTION
2.5(C); OR (II) THE BOARD OF DIRECTORS DETERMINES, ACTING IN GOOD FAITH AND IN
THE PROPER DISCHARGE OF ITS FIDUCIARY DUTIES, THAT AFTER THE LAPSE OF SUCH
PERIOD THE ALTERNATIVE TRANSACTION CONTINUES TO BE A SUPERIOR PROPOSAL IN
COMPARISON TO THE AMENDED OFFER OF THE OFFEROR;
(H)
BY THE OFFEROR, IF THERE HAS BEEN A BREACH
OR NON-PERFORMANCE BY THE COMPANY OF A MATERIAL OBLIGATION OR COVENANT CONTAINED
IN THIS AGREEMENT OR IF ANY REPRESENTATION OR WARRANTY OF THE COMPANY CONTAINED
IN THIS AGREEMENT IS OR HAS BECOME UNTRUE OR INCORRECT AFTER THE DATE HEREOF
SUCH THAT THE CONDITION CONTAINED IN PARAGRAPH (E) OR (F) OF SCHEDULE A WOULD
NOT BE SATISFIED AND SUCH BREACH, NON-PERFORMANCE OR UNTRUTH OR INCORRECTNESS IS
NOT CURABLE OR, IF CURABLE, IS NOT CURED BY THE EARLIER OF SUCH DATE WHICH IS 30
DAYS FROM THE DATE OF NOTICE OF SUCH BREACH FROM THE OFFEROR, AND THE EXPIRY
TIME (OR ANY EXTENSION OF THE EXPIRY TIME MADE WITHIN SUCH 30 DAY PERIOD);
(I)
BY THE COMPANY, IF THERE HAS BEEN A
BREACH OR NON-PERFORMANCE BY THE OFFEROR OF A MATERIAL OBLIGATION OR