Greetings!
I have been lurking since before we all fled the Yahoo board, and finally decided to come out of hiding.
I’m as annoyed as many of you over being kept in the dark all the time, but I also have a theory about the July 31 deadline that’s a little different.I’m an engineer, not a lawyer, so my theory isn’t backed by expertise.
I’m thinking that the July 31 deadline has more to do with the exclusivity period than with creating a drop dead date for negotiating the A&F Agreement.Reading the whole Binding Primary Agreement, it seems pretty clear to me that CRRC wants protected from other side deals and offers to KRY.There is all sorts of verbiage in sections 1, 5, and 6 aimed at keeping KRY on the straight and narrow while negotiations are on.There are some really stiff penalties for KRY if we cheat (see section 6(d)).It looks like some of our exposure to penalties ends when the Exclusivity Period ends, and some of our exposure continues for nine more months.I’m guessing that the passing of the July 31 date mostly means that KRY is free to walk away from CRRC and try their luck elsewhere if they feel that CRRC has been jerking them around.
Searching for “July 31” in the document turns up 4 hits (in sections 1, 5, 6, and 9).I have pasted these in below, with some of the verbiage deleted as noted.Three of the references to the date have to do with penalizing us if we don’t negotiate in good faith.Expiration of the exclusivity period probably gives us a little more leverage in the negotiations (if you think we have realistic alternatives to CRRC out there somewhere).
This theory would tend to support the idea that the two companies are just plowing ahead trying to get the A&F Agreement done and do not regard the passing of the “deadline” as a material event.
Still sucks for those who sold below $0.42 (US) .
1.Exclusivity
During the period (the “Exclusivity Period”) commencing on the date of this Agreement (the “Effective Date”) until the earlier of: (i) 5:00 p.m. (Toronto time) on July 31, 2010; and (ii) the date on which the parties or their designated affiliates (as defined herein) enter into the A&F Agreement (as defined herein), Crystallex and CRRC agree to negotiate exclusively and in good faith with each other in an effort to negotiate the A&F Agreement and other definitive agreements in respect of the transactions contemplated herein (the “Transactions”).
5. Termination
This Agreement shall be terminated on the earlier of (i) the date of execution and delivery of the A&F Agreement; and (ii) 5:00 p.m. (Toronto time) on July 31, 2010 or such later date as mutually agreed, without any liability to the parties other than any liability accrued to the date of termination related to any breach by a party of its obligations hereunder and any obligation Crystallex may have to pay the termination fee set out in Section 6. In the event of the termination of this Agreement in accordance with the terms hereof, the obligations of the parties under sections 6, 7, 8, 9, 15, 16 and 17 shall survive any such termination.
6. Non-Solicitation and Termination Fee
(a) For the purposes of this section 6, “Acquisition Proposal” means, (Detailed description of an “Acquisition Proposal” deleted by Anvil801).
(b) Crystallex shall not, on or before 5:00 p.m. (Toronto time) on July 31, 2010, directly or indirectly, through any affiliate, officer, director, employee, representative (including any financial or other advisor) or agent of Crystallex or any of its affiliates (collectively, the “Crystallex Representatives”): (i) solicit, assist, initiate or knowingly encourage or facilitate (including by way of furnishing information or entering into any form of agreement, arrangement or understanding) the initiation of any inquiries or proposals regarding an Acquisition Proposal; (more to that effect deleted by Anvil801).
(c) Crystallex shall, and shall cause the Crystallex Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, ( more to that effect deleted by Anvil801).
(d) If either (1) within nine months following the termination of this Agreement, Crystallex or one or more of its affiliates (i) enters into a definitive agreement in respect of one or more Acquisition Proposals or (ii) there shall have been consummated one or more Acquisition Proposals, or (2) Crystallex shall have breached its covenants in Section 1 to negotiate exclusively or this Section 6, Crystallex shall pay CRRC (by wire transfer of immediately available funds) an amount equal to the greater of US$10 million and 4% of the market capitalization of Crystallex, calculated on a fully diluted basis, based on a 5 day volume weighted average price of the Crystallex common shares ending on the 5th trading day immediately following such event within ten (10) business days following such event. Notwithstanding the foregoing, no amount shall be payable pursuant to this Section 6(d) if the A&F Agreement is not executed and delivered by CRRC and such non-execution and delivery is attributable to CRRC not having received all of its required corporate and governmental approvals or, in the case
9. Enforceability
The parties hereby agree that all of the terms of this Agreement shall be binding upon each of the parties and their respective successors and permitted assigns. The terms of this Agreement do not purport to include all of the essential terms of the Transactions contemplated hereby (which shall only be contained in the duly executed Definitive Agreements and other documents to be executed in connection therewith). Failing execution by the parties of the A&F Agreement prior to 5:00 p.m. (Toronto time) on July 31, 2010, this Agreement, notwithstanding anything to the contrary contained herein, shall terminate and be of no further force or effect without any liability to the parties other than any liability accrued to the date of termination related to any breach by a party of its obligations hereunder and any obligation Crystallex may have to pay the termination fee set out in Section 6.
