Company No Solicitation. (a) Except as expressly permitted by this Section 5.4, the Company shall, and shall cause each of its Subsidiaries to, and instruct its and their respective officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal and (ii) from and after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (A) solicit, initiate or knowingly facilitate or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, (B) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any other person any non-public information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle providing for a Company Takeover Proposal. (b) Except as expressly provided by this Agreement, the Company shall not take any action to exempt any person from the restrictions on “business combinations” contained in DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to apply. Except (i) as necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.4 (and in such case only in accordance with the terms hereof) or (ii) if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any such action or forbearance would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement. (c) Notwithstanding anything to the contrary contained in this Section 5.4, if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) of this Section 5.4 and if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Company Superior Proposal, and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly, (i) furnish, pursuant to a Company Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the person that has made such Company Takeover Proposal and its Representatives and potential sources of funding; provided that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal. “Company Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.4. Notwithstanding anything to the contrary in this Agreement, (A) the Company may grant a waiver, amendment or release under any confidentiality agreement, standstill agreement or similar agreement to the extent necessary to allow a Company Takeover Proposal to be made to the Company or the Company Board (or any committee thereof), and (B) the Parties agree that, by execution of this Agreement, the Company shall be deemed to have waived, as of immediately prior to the execution and delivery of this Agreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof).
Appears in 3 contracts
Samples: Merger Agreement (Ii-Vi Inc), Merger Agreement (Coherent Inc), Merger Agreement (Lumentum Holdings Inc.)
Company No Solicitation. (a) Except as expressly permitted by this Section 5.4, the Company shall, and shall cause each of its Subsidiaries to, and instruct its and their respective officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal and (ii) from and after From the date hereof until the earlier of this Agreement until the Effective Time or, if earlier, and the termination of this Agreement pursuant to Section 9.1, except as otherwise set forth in accordance with Article VIIthis Section 7.5, the Company shall not, nor shall it authorize or permit any of the Company Subsidiaries to, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ respective Representatives not to, directly or indirectly, indirectly (Ai) solicit, initiate or solicit or knowingly facilitate facilitate, knowingly induce or knowingly encourage any inquiries regarding, inquiry or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, (Bii) engage inenter into, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any other person Person any non-public information or data with respect to, or cooperate in connection with any way that would otherwise reasonably be expected to lead to, any proposal or offer that constitutes, or would reasonably be expected to lead to, any Takeover Proposal, (iii) submit to the stockholders of the Company for the purpose of encouraging their approval or facilitating, a Company adoption any Takeover Proposal or (Civ) agree or publicly announce an intention to take any of the foregoing actions. Except as otherwise set forth in Section 7.5(d), the Board of Directors of the Company or any committee thereof shall not approve, recommend declare advisable, adopt or enter intorecommend, or publicly propose to approve, recommend declare advisable, adopt or recommend, or allow the Company or any Company Subsidiary to execute or enter into, any binding or non-binding letter of intent or similar documentintent, agreement in principle, memorandum of understanding, merger agreement, commitmentacquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement contemplating or otherwise in connection with, or that is intended to or would reasonably be expected to lead to, any Takeover Proposal (other than confidentiality agreements permitted under Section 7.5(b)(i)) (an “Alternative Acquisition Agreement”). The Company shall, and the Company shall cause the Company Subsidiaries and shall use reasonable best efforts to cause its and their respective Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons or their Representatives conducted prior to the date of this Agreement with respect to any Takeover Proposal and will request the prompt return or destruction of any confidential information previously furnished to such Persons in connection therewith and immediately terminate the access of each such Person and its Representatives to any electronic data room maintained by or on behalf of the Company or any of the Company Subsidiaries. Neither the Company nor any of the Company Subsidiaries shall modify, amend or terminate, or waive, release, fail to enforce or assign any provisions of, any confidentiality agreement (other than any standstill provision therein) to which it is a party relating to any Takeover Proposal or any inquiry, offer or proposal in principle providing for connection therewith and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement (other than any standstill provision therein). Without limiting the foregoing, any violation of the restrictions set forth in this Section 7.5 by any Representative of the Company or any of the Company Subsidiaries shall be deemed to be a Company Takeover Proposalbreach of this Section 7.5 by the Company.
(b) Except as expressly provided by this AgreementNotwithstanding the foregoing, prior to receipt of the Company Stockholder Approval, the Company shall may, in response to a bona fide written Takeover Proposal that was first received after the date hereof, was unsolicited and did not take any action to exempt any person result from the restrictions on “business combinations” contained in DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to apply. Except a breach of Section 7.5(a):
(i) as necessary furnish information with respect to take any actions that the Company or any third party would otherwise be permitted and the Company Subsidiaries to take the Person making such Takeover Proposal and its Representatives pursuant to this Section 5.4 and in accordance with a confidentiality agreement containing provisions no less restrictive in any substantive respect than those contained in the Confidentiality Agreement; provided that such confidentiality agreement need not contain a standstill provision; provided, further, that all such information provided to such Person has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with (and in any event on the same calendar day as) the time it is provided to such case only in accordance with the terms hereof) or Person; and
(ii) if participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, that the Board of Directors of the Company Board determines in good faith, faith (after consultation with its outside legal counsel and a financial advisors advisor of nationally recognized reputation), that (i) after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation (it being understood that the Company Financial Advisor is a financial advisor of nationally recognized reputation), such Takeover Proposal is, or would reasonably be expected to lead to, a Superior Proposal and (ii) after consultation with its outside legal counsel, that any the failure to furnish such action information or forbearance participate in such discussions or negotiations with respect to such Takeover Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything As promptly as reasonably practicable after the receipt, directly or indirectly, by the Company of any Takeover Proposal or any proposal, offer or inquiry with respect to, or that would reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, the Company shall provide oral and written notice to Parent of (i) such Takeover Proposal, proposal, offer or inquiry, (ii) the identity of the Person making any such Takeover Proposal, proposal, offer or inquiry and (iii) the economic and other material terms and conditions of any such Takeover Proposal, proposal, offer or inquiry (including an unredacted copy of all written materials provided by such Person to the contrary contained Company in connection with such Takeover Proposal, proposal, offer or inquiry and any amendments or modifications thereto). The Company shall promptly (and in any event within 24 hours) keep Parent reasonably informed of any material developments with respect to any such Takeover Proposal, proposal, offer or inquiry (including any material changes thereto and copies of any additional written materials received by the Company, the Company Subsidiaries or their respective Representatives from the Person that submitted such Takeover Proposal or such proposal, offer or inquiry or such Person’s Representatives).
(d) Except as provided in this Section 5.47.5(d), if neither the Board of Directors of the Company nor any committee thereof shall, directly or indirectly, effect a Change in Recommendation. Notwithstanding the foregoing, at any time from and after the date of this Agreement and prior to obtaining receipt of the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) Board of this Section 5.4 and if Directors of the Company may, in response to a Superior Proposal (that has not been withdrawn) or an Intervening Event, effect a Change in Recommendation; provided that the Board of Directors of the Company determines in good faithfaith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, further, that the Board of Directors of the Company may not effect such a Change in Recommendation unless:
(i) the Board of Directors of the Company shall have first provided four Business Days’ prior written notice to Parent that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event (it being understood that delivery of such notice shall not in and of itself constitute a Change in Recommendation), which notice shall (A) in the case of a Superior Proposal, include the material terms and conditions of the Superior Proposal that is the basis of the proposed action of the Board of Directors of the Company (including the identity of the Person making such Superior Proposal and a written summary of any material terms and conditions communicated orally), and shall attach the most current unredacted version of the relevant Alternative Acquisition Agreement (if any) with the Person making such Superior Proposal and unredacted copies of any other documents evidencing or specifying any other terms and conditions of such Takeover Proposal received from, or provided by, the Person making such Superior Proposal and (B) in the case of an Intervening Event, state in reasonable detail the material facts underlying, and the rationale and basis for, the determination that an Intervening Event has occurred (it being understood and agreed that an amendment to the material terms of such Superior Proposal or a material change to the facts and circumstances that are the basis for such Intervening Event shall require an updated notice and a new three Business Day period pursuant to this clause (i) during which period the Company shall be required to comply with this Section 7.5(d) anew with respect to such additional notice);
(ii) during such four Business Day period, the Company and its Representatives, to the extent reasonably requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner (A) in the case of a Superior Proposal, that the Takeover Proposal ceases to constitute a Superior Proposal or (B) in the case of an Intervening Event, to obviate the need to effect a Change in Recommendation; and
(iii) after taking into account any revised terms offered in writing by Parent, the Board of Directors of the Company determines in good faith (A) in the case of a Superior Proposal, after consultation with its legal counsel and financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal and (B) in the case of a Superior Proposal or Intervening Event, after consultation with its outside financial advisors and outside legal counsel, that such the failure to make a Change in Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law.
(e) Nothing contained in this Section 7.5 shall prohibit the Company from complying with Rule 14d-9, Rule 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act in respect of any Takeover Proposal constitutes or would reasonably be expected making any disclosure to lead to a the stockholders of the Company Superior Proposal, and if the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel) that the failure to take make such action disclosure would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, then the Company and its Representatives mayhowever, directly that any such action taken or indirectly, (i) furnish, pursuant statement made that relates to a Company Acceptable Confidentiality Agreement, information (including non-public information) with respect Takeover Proposal shall not be deemed to be a Change in Recommendation if the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records Board of Directors of the Company and its Subsidiaries, to the person that has made such Company Takeover Proposal and its Representatives and potential sources of funding; provided that reaffirms the Company shall substantially concurrently Recommendation in such statement or in connection with such action; provided, further, that neither the delivery to such person provide to Parent any non-public information concerning Board of Directors of the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal. “Company Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.4. Notwithstanding anything to the contrary in this Agreement, (A) the Company may grant a waiver, amendment or release under any confidentiality agreement, standstill agreement or similar agreement to the extent necessary to allow a Company Takeover Proposal to be made to the Company or the Company Board (or nor any committee thereofthereof shall, except as expressly permitted by Section 7.5(d) (Change in Recommendation), and effect a Change in Recommendation.
(Bf) the Parties agree that, by execution For purposes of this Agreement, the Company shall be deemed to have waived, as of immediately prior to the execution and delivery of this Agreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof).:
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Lantheus Holdings, Inc.), Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Merger Agreement (Lantheus Holdings, Inc.)
Company No Solicitation. (a) Except as expressly permitted by this Section 5.4, the Company shall, and shall cause each of its Subsidiaries to, affiliates and instruct its and their respective officersofficers and directors to, directors, and shall use reasonable best efforts to cause the employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, collectively “Representatives”) of the Company or any of its affiliates to: :
(i) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal Proposal, and promptly instruct (iito the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) from or otherwise request, any person that has entered into a confidentiality or non-disclosure agreement that has not been terminated or expired and after was executed within the 12-month period prior to the date of this Agreement in connection with any actual or potential Company Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives;
(ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, :
(A) solicit, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, ,
(B) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any other person any non-public information regarding the Company in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal or Proposal, or
(C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle providing for (whether written or oral) with respect to a Company Takeover Proposal.Proposal (other than an Acceptable Company Confidentiality Agreement entered into in accordance with Section 5.4(b)); and
(biii) Except as expressly provided by this Agreement, to the Company shall not take any action to exempt any person from the restrictions on “business combinations” contained in DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to apply. Except (i) as extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.4 (and in such case only in accordance with or except to the terms hereof) or (ii) if extent that the Company Board determines in good faithof Directors concludes, after consultation with its outside financial advisors and outside legal counsel, that any the failure to take such action or forbearance would reasonably be expected to be inconsistent with its the fiduciary duties of the Company Board of Directors under applicable Law, (A) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under under, any (1) standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(cb) Notwithstanding anything to the contrary contained in this Section 5.45.4(a), if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Common Shareholder Approval, the Company, directly or indirectly indirectly, receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a the Company’s, its affiliates’ or the Company’s or its affiliates’ Representatives’ material breach (or a deemed material breach) of this Section 5.4 and if the Company Board of Directors determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or would could reasonably be expected to lead to a Company Superior Proposal, and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly, :
(i) furnish, pursuant to a an Acceptable Company Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the person that who has made such Company Takeover Proposal and its Representatives and potential sources of fundingfinancing; provided provided, that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and Parent; and
(ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal, and solicit (it being understood that no solicitation under this clause (ii) shall result in any proposal or offer being deemed to be “unsolicited”), initiate, facilitate, or encourage inquiries or the making of proposals or offers from such person. “Acceptable Company Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement; Agreement (including standstill restrictions), provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.4. Notwithstanding anything to the contrary Nothing in this Agreement, (A) the Company may grant a waiver, amendment or release under any confidentiality agreement, standstill agreement or similar agreement to the extent necessary to allow a Company Takeover Proposal to be made to Section 5.4 shall prohibit the Company or the Company Board of Directors, directly or indirectly through any officer, employee or Representative, from (1) informing any person that the Company is party to this Agreement and informing such person of the restrictions that are set forth in this Section 5.4 or any committee thereof)(2) disclosing factual information regarding the business, and (B) financial condition or results of operations of the Parties agree Company or its Subsidiaries or the fact that a Company Takeover Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise; provided that, by execution in the case of this Agreementclause (2), the Company shall in good faith determine that such information, facts, identity or terms are required to be deemed disclosed under applicable Law or that failure to have waived, as of immediately prior make such disclosure is reasonably likely to the execution and delivery of this Agreement, any provision in any such agreement to the extent necessary to allow the be inconsistent with its fiduciary duties under applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof)Law.
Appears in 2 contracts
Samples: Merger Agreement (Callon Petroleum Co), Merger Agreement (Carrizo Oil & Gas Inc)
Company No Solicitation. (a) Except as expressly permitted by this Section 5.4, the Company shall, and shall cause each of its Subsidiaries to, and instruct its and their respective officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal During the period from the Agreement Date and (ii) from and after the date of this Agreement continuing until the Effective Time or, if earlier, earlier of the termination of this Agreement in accordance with Article VIIand the Closing Date, Parent, the Company and the Members shall not, and shall not authorize or permit any of their respective controlled affiliates or authorize any of their respective Representatives to, directly or indirectly, (Ai) solicit, initiate or knowingly facilitate or initiate, knowingly encourage any inquiries regardingor facilitate the making, submission or the making announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover an Acquisition Proposal, (Bii) engage participate in, maintain or continue or otherwise participate in any substantive discussions communications (except solely to provide written notice as to the existence of these provisions) or negotiations regardingregarding any possible Acquisition Proposal, (iii) deliver or furnish make available to any other person any non-public information with respect to the Company in a manner not customarily delivered or made available to third parties in the ordinary course of business in connection with or for the purpose of encouraging or facilitatinga possible Acquisition Proposal, a Company Takeover Proposal or (Civ) agree to, accept, approve, endorse or recommend (or enter intopublicly propose or announce any intention or desire to agree to, or propose to accept, approve, recommend endorse or recommend) any Acquisition Proposal, (v) enter into, into any letter of intent or similar document, agreement, commitmentany other Contract contemplating or otherwise relating to, or agreement in principle providing for a Company Takeover Proposal.
(b) Except as expressly provided by this Agreement, the Company shall not take any action to exempt any person from the restrictions on “business combinations” contained in DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to apply. Except (i) as necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.4 (and in such case only in accordance with the terms hereof) or (ii) if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any such action or forbearance would reasonably be expected to lead to, an Acquisition Proposal or (vi) enter into any other transaction or series of transactions not in the ordinary course of business and consistent with past practice, the consummation of which would impede, interfere with, prevent or delay, or would reasonably be inconsistent with its fiduciary duties under applicable Lawexpected to impede, (A) interfere with, prevent or delay, the consummation of the Transactions. Parent, the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company Members shall, and shall cause its Subsidiaries each of their controlled affiliates and direct their respective Representatives to, enforce (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any persons conducted prior to or on the confidentiality Agreement Date with respect to any Acquisition Proposal and standstill provisions (B) immediately revoke or withdraw access of any person (other than Buyer and its Representatives) to any data room containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each person (other than Buyer and its Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such agreementperson in connection with an Acquisition Proposal.
(cii) Notwithstanding anything Parent, the Company and/or the Members shall promptly (but in any event, within 24 hours) notify Buyer orally and in writing after receipt by Parent, the Company and/or the Members (or, to the contrary contained in this Section 5.4, if at any time from and after the date knowledge of this Agreement and prior to obtaining the Company Stockholder Approvalor Parent, by any of the Parent or Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a material breach (or a deemed material breach’s Representatives) of this Section 5.4 and if the Company Board determines in good faith(i) any Acquisition Proposal or (ii) any inquiry, after consultation with its outside financial advisors and outside legal counselexpression of interest, proposal or offer that such Company Takeover Proposal constitutes constitutes, or would reasonably be expected to lead to a Company Superior to, an Acquisition Proposal, and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly, (i) furnish, pursuant to a Company Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the person that has made such Company Takeover Proposal and its Representatives and potential sources of funding; provided that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal. “Company Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.4. Notwithstanding anything to the contrary in this Agreement, (A) the Company may grant a waiver, amendment or release under any confidentiality agreement, standstill agreement or similar agreement to the extent necessary to allow a Company Takeover Proposal to be made to the Company or the Company Board (or any committee thereof), and (B) the Parties agree that, by execution of this Agreement, the Company shall be deemed to have waived, as of immediately prior to the execution and delivery of this Agreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof).
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (890 5th Avenue Partners, Inc.), Membership Interest Purchase Agreement (890 5th Avenue Partners, Inc.)
Company No Solicitation. (a) The Company agrees that it shall, and shall cause the Company Subsidiaries and its and their respective directors, officers and employees of the Company and the Company Subsidiaries to, and shall direct and use its commercially reasonable efforts to cause its other Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal. The Company also agrees that it shall, within five (5) Business Days after the date of this Agreement, (i) request each Person that has executed a confidentiality agreement in connection with any Company Takeover Proposal or its consideration of any Company Takeover Proposal (and for which such a request has not previously been made) to return or destroy all confidential information furnished to such Person by or on behalf of the Company or any of the Company Subsidiaries and (ii) terminate any data room or other diligence access of such Person. Except as expressly permitted by this Section 5.46.03(b), the Company shallshall not, and shall cause each of its the Company Subsidiaries to, and instruct its and their respective officers, directors, employeesofficers and employees not to, agents, financial advisors, investment bankers, attorneys, accountants and shall direct and use its commercially reasonable efforts to cause its other representatives (collectively, “Representatives”) Representatives not to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal and (ii) from and after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (Ai) solicit, initiate or knowingly facilitate encourage, or knowingly encourage facilitate, any inquiries regardingCompany Takeover Proposal or any inquiry, or the making of any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, to a Company Takeover Proposal, or (Bii) enter into, engage in, continue or otherwise participate in any substantive discussions (except, in response to an inquiry from any Person, solely to notify such Person of the existence of the provisions of this Section 6.03(a)) or negotiations regarding, or furnish to any other person Person any non-public material information in connection with, any Company Takeover Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Takeover Proposal. Notwithstanding anything to the contrary contained herein, the Company shall be permitted to terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person if (i) the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be likely to be inconsistent with its directors’ duties under applicable Law and (ii) absent such action by the Company, the applicable provisions would prevent any Person or for the purpose of encouraging or facilitating, group from making a Company Takeover Proposal privately to the Company Board. The Company agrees that any material violations of the restrictions set forth in this Section 6.03(a) by any Representative of the Company shall be deemed to be a breach by the Company.
(b) Notwithstanding the provisions of Section 6.03(a), at any time prior to obtaining the Requisite Company Stockholder Vote, in response to an unsolicited written Company Takeover Proposal received after the execution and delivery of this Agreement, which did not arise as a result of a breach of the Company’s obligations under Section 6.03(a), (i) the Company and its Representatives may contact the Person or group of Persons making such Company Takeover Proposal (Cand its Representatives) approve, recommend to clarify the terms and conditions thereof and (ii) if the Company Board determines in good faith (after consultation with the Company Financial Advisor and its outside legal counsel) that such proposal constitutes or enter intois reasonably likely to lead to a Company Superior Proposal and the failure to take such actions would, or propose would be reasonably likely to, be inconsistent with its directors’ duties under applicable Law, the Company and its Representatives may (A) furnish information with respect to approvethe Company and the Company Subsidiaries to the Person or group of Persons making such Company Takeover Proposal (and its Representatives), recommend provided, that (1) prior to so furnishing such information the Company has entered into a confidentiality agreement with such Person or enter intogroup of Persons on terms not less restrictive in the aggregate to such Person or group of Persons than the provisions of the Confidentiality Agreement are to HR, any letter its Affiliates and their respective Representatives (including the standstill and non-solicitation provisions) and (2) all such information has previously been provided or made available to HR or its Representatives or is provided or made available to HR or its Representatives prior to or substantially concurrently with the time it is provided to such Person or group of intent Persons; and (B) participate in discussions or similar document, agreement, commitment, negotiations with the Person or agreement in principle providing for a group of Persons making such Company Takeover Proposal (and its Representatives) regarding such Company Takeover Proposal.
(bc) Except as expressly provided permitted by Section 6.03(d), neither the Company Board nor any committee thereof shall (i) withhold, withdraw (or modify or qualify in a manner adverse to HR), or publicly propose or resolve to withhold, withdraw or modify or qualify in a manner adverse to HR, the Company Board Recommendation, (ii) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus, (iii) authorize, approve, adopt or recommend, or publicly propose or resolve to authorize, approve, adopt or recommend, any Company Takeover Proposal, (any action described in these clauses (i), (ii) or (iii) being referred to as a “Company Recommendation Withdrawal”), or (iv) allow the Company or any of the Company Subsidiaries to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract (other than a confidentiality agreement referred to in Section 6.03(b)) providing for, or with respect to, any Company Takeover Proposal; provided, however, that the delivery by the Company, the Company Board or any committee thereof of any notice specified in Section 6.03(e) shall not be deemed to be or constitute a Company Recommendation Withdrawal.
(d) Notwithstanding the provisions of Section 6.03(c), at any time prior to obtaining the Requisite Company Stockholder Vote, and subject in each case to the prior compliance with Section 6.03(e), in response to a bona fide written Company Takeover Proposal that did not arise from a breach of the Company’s obligations under this Section 6.03, if the Company Board determines in good faith (after consultation with the Company Financial Advisor and outside legal counsel) that such Company Takeover Proposal constitutes a Company Superior Proposal and that, if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would, or would be reasonably likely to, be inconsistent with its directors’ duties under applicable Law, (A) the Company Board and/or any authorized committee thereof may make a Company Recommendation Withdrawal and/or (B) the Company may terminate this Agreement pursuant to Section 8.01(d)(iii) in order to, concurrently with or immediately after such termination, enter into a definitive agreement with respect to such Company Superior Proposal; provided, that the Company shall pay to HR the Company Termination Fee payable pursuant to Section 8.03(b) prior to or concurrently with such termination.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Company shall Board may not take any action make a Company Recommendation Withdrawal or terminate this Agreement pursuant to exempt any person from the restrictions on “business combinations” contained in DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to apply. Except Section 8.01(d)(iii), unless (i) if such Company Recommendation Withdrawal or termination is being made as necessary a result of a Company Superior Proposal, the Company shall have provided to take any actions HR three (3) Business Days prior written notice advising HR that the Company Board intends to take such action and specifying the reasons therefor as well as the identity of the Person(s) making such Company Superior Proposal and the material terms and conditions of any Company Superior Proposal (including copies of all agreements or documents evidencing such Company Superior Proposal, including the proposed acquisition agreement and financing commitments, if any); and (ii) (A) during such three (3) Business Day period, if requested by HR, the Company shall have engaged in negotiations with HR regarding any amendment to this Agreement proposed in writing by HR and (B) at the end of such three (3) Business Day period the Company Board determines in good faith (after consultation with the Company Financial Advisor and outside legal counsel), after taking into account any such amendments that HR shall have agreed in writing to make prior to the end of such three (3) Business Day period, that such Company Takeover Proposal continues to constitute a Company Superior Proposal and the failure to make a Company Recommendation Withdrawal or terminate this Agreement pursuant to Section 8.01(d)(iii), as applicable, would, or would be reasonably likely to, be inconsistent with its directors’ duties under applicable Law; provided, that any material amendment to the financial terms or any third party would otherwise be permitted other material term or condition of such a Company Superior Proposal, shall require the Company to take deliver to HR a new notice pursuant to this Section 5.4 6.03(e) and result in a new negotiation period, as contemplated by this Section 6.03(e); provided, further, that any such new negotiation period shall be a period of two (2) Business Days.
(f) In addition to the obligations of the Company set forth in the other provisions of this Section 6.03, the Company shall as promptly as practicable (and in any event within forty eight (48) hours after receipt) advise HR orally and in writing of the receipt of any Company Takeover Proposal or any inquiry, offer or proposal from any Person seeking to have discussions or negotiations or requesting information with respect to any Company Takeover Proposal and the material terms and conditions of any such case only in accordance Company Takeover Proposal (including the identity of the Person making such Company Takeover Proposal and copies of all material agreements or documents evidencing such Company Takeover Proposal, including the acquisition agreement and financing commitments, if any). The Company shall thereafter keep HR reasonably informed on a reasonably current basis of the status (including whether the Company has entered into discussions or negotiations or provided any information with respect to any such Company Takeover Proposal) and material terms of any such Company Takeover Proposal (including any material change to the terms hereofthereof) and promptly provide HR with copies of all material agreements or documents evidencing any such Company Takeover Proposal, inquiry, offer or proposal, including financing commitments, if any.
(g) Nothing contained in this Section 6.03 shall prohibit the Company or the Company Board from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the stockholders of the Company if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any the failure to make such action or forbearance disclosure would be reasonably be expected likely to be inconsistent with its fiduciary directors’ duties under applicable Law, (Aiii) informing any Person of the existence of the provisions contained in this Section 6.03 in response to an unsolicited inquiry from such Person or (iv) providing factual information the Company’s stockholders, so long as the disclosure through which such factual information is conveyed, taken as a whole, is not contrary to the Company Board Recommendation or the Company Board or a committee thereof reaffirms the Company Board Recommendation concurrently with such factual communication; provided that any disclosure made pursuant to Item 1012(a) of Regulation M-A, Rule 14d-9 or Rule 14e-2(a), or pursuant to the preceding clause (ii) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or a Company Takeover Proposal, shall be deemed to be a Company Recommendation Withdrawal unless the response of the Company Board or an authorized committee thereof, or such disclosure, as applicable, expressly reaffirms the Company Board Recommendation to the Company Stockholders in such disclosure; it being understood that a “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communication to the stockholders of the Company) shall not be deemed to be or constitute a Company Recommendation Withdrawal.
(h) Notwithstanding the foregoing, the parties acknowledge and agree that the Financing Cooperation Activities and the Sales Activities requested by HR and reasonably related to such requests are discussions and negotiations permitted to be conducted by the Company, any Company Subsidiaries and its and their respective directors, officers, employees and other Representatives. Nothing contained in this Section 6.03 shall prohibit the Company, any Company Subsidiaries or its and their respective directors, officers, employees or other Representatives from engaging in any such negotiations and discussions. The parties acknowledge and agree that the Financing Cooperation Activities and the Sales Activities requested by HR and reasonably related to such requests shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which constitute a breach by the Company or any of its Company Subsidiaries is a party or (2) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.4, if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) of this Section 5.4 and if the Company Board determines in good faith6.03, after consultation with its outside financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Company Superior Proposal, and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly, including (iwithout limitation) furnish, pursuant to a Company Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the person that has made such Company Takeover Proposal and its Representatives and potential sources of funding; provided that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal. “Company Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.4. Notwithstanding anything to the contrary in this Agreement, (A) the Company may grant a waiver, amendment or release under any confidentiality agreement, standstill agreement or similar agreement to the extent necessary to allow event a Company Takeover Proposal to be made to the Company or the Company Board (or any committee thereof)ensues, and (B) the Parties agree that, by execution of this Agreement, the Company which shall be deemed to not have waived, arisen as a result of immediately prior to a breach of the execution and delivery of Company’s obligations under this Agreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof)Section 6.03.
Appears in 1 contract
Company No Solicitation. (a) Except as expressly permitted by this Section 5.4During the Interim Period, the Company shallshall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall use reasonable best efforts to cause each the other Representatives of the Company and its Subsidiaries not to, and instruct its and their respective officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal and (ii) from and after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (A) solicit, initiate initiate, propose, or knowingly facilitate or knowingly encourage the submission of any inquiries regardingCompany Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Company Takeover Proposal, or: (i) enter into, continue, conduct, engage or otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to lead toresult in, a Company Takeover Proposal; (ii) (A) amend or grant any waiver or release under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of the Company or its Subsidiaries, or (B) engage inapprove any transaction under, or any Third Party becoming an "interested stockholder" under, Section 203 of the Delaware Law; (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Company Takeover Proposal (each, a "Company Acquisition Agreement"); or (iv) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding anything to the contrary in this Agreement, the Company or any of its Representatives may, in response to an inquiry or proposal from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 6.9. The Company Board shall not effect a Company Adverse Recommendation Change. The Company shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall use reasonable best efforts to cause the other Representatives of the Company and its Subsidiaries not to, continue or otherwise participate in any substantive discussions or negotiations regardingand all existing activities, discussions, or furnish negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any other person Company Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in connection with or for the purpose respect of encouraging or facilitating, a Company Takeover Proposal or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle providing for a Company Takeover Proposal.
(b) Except as expressly provided by this Agreement, the Company shall not take any action to exempt any person from the restrictions on “business combinations” contained in DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to apply. Except (i) as necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.4 (and in such case only in accordance with the terms hereof) or (ii) if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any such action or forbearance would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) the Company and its Subsidiaries shall not release that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any third party fromThird Party to any physical or electronic data room relating to any potential Company Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth in this Section 6.9 by any director or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which officer of the Company or any of its Subsidiaries is a party or (2) confidentiality provision in by any agreement to which other Representative of the Company acting at the Company's direction shall be deemed to constitute a breach of this Section 6.9 by the Company.
(b) The Company shall notify Parent promptly (but in no event later than three (3) Business Days) after the receipt by the Company (or any of its Subsidiaries is a party (excluding Representatives) of any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.4, if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person inquiry that did not result from a material breach (or a deemed material breach) of this Section 5.4 and if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Company Superior Takeover Proposal, and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly, (i) furnish, pursuant to a Company Acceptable Confidentiality Agreement, information (including any request for non-public information) with respect information relating to the Company and or its Subsidiaries, and afford Subsidiaries or for access to the business, properties, assets, employeesbooks, officers, Contracts, books and or records of the Company or its Subsidiaries by any Third Party that would reasonably be expected to lead to a Company Takeover Proposal. In such notice, the Company shall identify the Third Party making, and its Subsidiariesdetails of the material terms and conditions of, any such Company Takeover Proposal, indication or request, including any proposed financing, and shall confirm that the Company has responded to the person that has made such Company Takeover Proposal and its Representatives and potential sources of funding; as provided that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal. “Company Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.4. Notwithstanding anything to the contrary in this Agreement, (A) the Company may grant a waiver, amendment or release under any confidentiality agreement, standstill agreement or similar agreement to the extent necessary to allow a Company Takeover Proposal to be made to the Company or the Company Board (or any committee thereof), and (B) the Parties agree that, by execution of this Agreement, the Company shall be deemed to have waived, as of immediately prior to the execution and delivery of this Agreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof6.9(a).
Appears in 1 contract
Samples: Merger Agreement (Inotiv, Inc.)
