Company Non-Solicitation. (1) Except as expressly provided in this Article 5, the Company and its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "Company Representatives"), or otherwise, and shall not permit any such Person to: (a) solicit, assist, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding, other than a confidentiality agreement permitted by an in accordance with Section 5.3) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company; (b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its Affiliates) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company; (c) make a Company Change in Recommendation; (d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal for the Company (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for the Company for a period of no more than five Business Days following such public announcement or public disclosure will not be considered to be in violation of this Section 5.1(1) provided the Company Board has rejected such Acquisition Proposal and reaffirmed the Company Board Recommendation before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting)); or (e) accept or enter into (other than a confidentiality agreement permitted by and in accordance with Section 5.3) or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Company. (2) The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its Affiliates) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company, and in connection therewith the Company shall: (a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data room, and any confidential information, properties, facilities, books and records of the Company or any of its Subsidiaries; and (b) promptly request, and exercise all rights it has to require: (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any Person other than the Purchaser, and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
Appears in 1 contract
Company Non-Solicitation. (1) Except On and after the date of this Agreement, except as expressly provided in this Article 5Agreement, the Company and its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "Company Representatives")Representative, or otherwise, and shall not permit any such Person to:
(a) solicit, assist, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries Subsidiary or entering into any form of agreement, arrangement or understanding, understanding (other than a confidentiality agreement permitted by an in accordance with Section 5.3) Acceptable Confidentiality Agreement), any inquiry, proposal or offer that constitutes or may could reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) regarding any inquiry, proposal proposal, expression or offer that constitutes or may could reasonably be expected to constitute or lead to, an Acquisition Proposal for or otherwise encourage, facilitate, cooperate with, assist or participate in, any effort or attempt of any other Person to do or seek to do any of the Company;foregoing; or
(c) make or propose publicly to make a Company Change in Recommendation;
(di) accept, approve, endorse engage in discussions or recommendnegotiations with, or publicly propose respond to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, enquiries from any Person that has made a bona fide unsolicited written Acquisition Proposal for after the date hereof and prior to the Company (it being understood Meeting, that publicly taking no position or did not result from a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for the Company for a period of no more than five Business Days following such public announcement or public disclosure will not be considered to be in violation breach of this Section 5.1(1) provided 5.1 and, subject to the Company’s compliance with Section 5.1(4), that the Company Board has rejected such Acquisition Proposal determined constitutes or could reasonably be expected to result in a Superior Proposal, or
(ii) provide information and reaffirmed the Company Board Recommendation before the end of such five Business Day period (access to properties, facilities, books or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date records of the Company Meeting)); or
(epursuant to Section 5.1(6) accept or enter into (other than a confidentiality agreement permitted by and in accordance with to any Person where the requirements of Section 5.35.1(6) or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Companyare met.
(2) The Company shall, and shall cause its Subsidiaries and the Company its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) with respect to any inquiry, proposal or offer that constitutes, or may could reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal, and in connection therewith the Company shall:
(a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data room, and any confidential information, properties, facilities, books and records of the Company or any of its SubsidiariesSubsidiary; and
(b) promptly within two Business Days of the date hereof, to the extent it is permitted to do so, request, and exercise all rights it has to require: require (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any such Person other than the Purchaser, ; and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, to the extent that such information has not previously been returned or destroyed, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company represents and warrants that the Company has not waived any confidentiality, standstill or similar agreement or restriction to which the Company or any Subsidiary is a party relating to an Acquisition Proposal, and covenants and agrees that (i) the Company shall take all necessary action to enforce each confidentiality, standstill, use, business purpose or similar agreement or restriction to which the Company or any Subsidiary is a party, and (ii) neither the Company, nor any Subsidiary nor any of their respective Representatives will, without the prior written consent of the Purchaser (which consent may be withheld or delayed in the Purchaser’s sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company, or any of its Subsidiaries, under any confidentiality, standstill, use, business purpose or similar agreement or restriction to which the Company or any Subsidiary is a party, it being acknowledged and agreed that the automatic termination of any standstill provisions of any such agreement or restriction as a result of the entering into and announcement of this Agreement by the Company pursuant to the express terms of any such agreement or restriction, shall not be a violation of this Section 5.1 and that the Company shall not be prohibited from considering a Superior Proposal from a party whose obligations so terminated automatically upon the entering into and announcement of this Agreement.
(4) If after the date of this Agreement, the Company or any of its Subsidiaries or any of their respective Representatives, receives or otherwise becomes aware of any inquiry, proposal or offer that constitutes or could reasonably be expected to constitute or lead to an Acquisition Proposal, or any request for copies of, access to, or disclosure of, confidential information relating to the Company or any Subsidiary, including but not limited to information, access, or disclosure relating to the properties, facilities, books or records of the Company or any Subsidiary, the Company: (a) shall promptly notify the Purchaser, at first orally, and then, and in any event within 24 hours in writing, of such Acquisition Proposal, inquiry, proposal, offer or request, including a description of its material terms and conditions, the identity of all Persons making the Acquisition Proposal, inquiry, proposal, offer or request, and shall provide the Purchaser with copies of any and all documents, correspondence or other material received in respect of the Acquisition Proposal, from or on behalf of any such Person and such other details of such Acquisition Proposal, inquiry, proposal, offer or request as the Purchaser may reasonably request; and
Appears in 1 contract
Samples: Arrangement Agreement
Company Non-Solicitation. (1) Except On and after the date of this Agreement, except as expressly provided in this Article 5Agreement, the Company and its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "Company Representatives")Representative, or otherwise, and shall not permit any such Person to:
(a) solicit, assist, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries Subsidiary or entering into any form of agreement, arrangement or understanding), other than a confidentiality agreement permitted by an in accordance with Section 5.3) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company;Proposal; or
(c) make or propose publicly to make a Company Change in Recommendation;
(di) accept, approve, endorse engage in discussions or recommendnegotiations with, or publicly propose respond to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, enquiries from any Person that has made a bona fide unsolicited written Acquisition Proposal for after the date hereof and prior to the Company (it being understood Meeting, that publicly taking no position or did not result from a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for the Company for a period of no more than five Business Days following such public announcement or public disclosure will not be considered to be in violation breach of this Section 5.1(1) provided 5.1 and, subject to the Company’s compliance with Section 5.1(4), that the Company Board has rejected such Acquisition Proposal determined constitutes or could reasonably be expected to result in a Superior Proposal, or (ii) provide information and reaffirmed the Company Board Recommendation before the end of such five Business Day period (access to properties, facilities, books or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date records of the Company Meeting)); or
(epursuant to Section 5.1(6) accept or enter into (other than a confidentiality agreement permitted by and in accordance with to any Person where the requirements of Section 5.35.1(6) or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Companyare met.
(2) The Company shall, and shall cause its Subsidiaries and the Company its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal, and in connection therewith the Company shall:
(a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data room, and any confidential information, properties, facilities, books and records of the Company or any of its SubsidiariesSubsidiary; and
(b) promptly within two Business Days of the date hereof, to the extent it is permitted to do so, request, and exercise all rights it has to require: require (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any such Person other than the Purchaser, ; and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, to the extent that such information has not previously been returned or destroyed, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company represents and warrants that the Company has not waived any confidentiality, standstill or similar agreement or restriction to which the Company or any Subsidiary is a party relating to an Acquisition Proposal, and covenants and agrees that
(i) the Company shall take all necessary action to enforce each confidentiality, standstill, use, business purpose or similar agreement or restriction to which the Company or any Subsidiary is a party, and (ii) neither the Company, nor any Subsidiary nor any of their respective Representatives will, without the prior written consent of the Purchaser (which consent may be withheld or delayed in the Purchaser’s sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company, or any of its Subsidiaries, under any confidentiality, standstill, use, business purpose or similar agreement or restriction to which the Company or any Subsidiary is a party, it being acknowledged and agreed that the automatic termination of any standstill provisions of any such agreement or restriction as a result of the entering into and announcement of this Agreement by the Company pursuant to the express terms of any such agreement or restriction, shall not be a violation of this Section 5.1 and that the Company shall not be prohibited from considering a Superior Proposal from a party whose obligations so terminated automatically upon the entering into and announcement of this Agreement.
(4) If after the date of this Agreement, the Company or any of its Subsidiaries or any of their respective Representatives, receives or otherwise becomes aware of any inquiry, proposal or offer that constitutes or could reasonably be expected to constitute or lead to an Acquisition Proposal, or any request for copies of, access to, or disclosure of, confidential information relating to the Company or any Subsidiary, including but not limited to information, access, or disclosure relating to the properties, facilities, books or records of the Company or any Subsidiary, the Company: (a) shall promptly notify the Purchaser, at first orally, and then, and in any event within 24 hours in writing, of such Acquisition Proposal, inquiry, proposal, offer or request, including a description of its material terms and conditions, the identity of all Persons making the Acquisition Proposal, inquiry, proposal, offer or request, and shall provide the Purchaser with copies of any and all documents, correspondence or other material received in respect of the Acquisition Proposal, from or on behalf of any such Person and such other details of such Acquisition Proposal, inquiry, proposal, offer or request as the Purchaser may reasonably request; and
Appears in 1 contract
Samples: Arrangement Agreement
Company Non-Solicitation. (1) Except as expressly otherwise provided in this Article 5, the Company and its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "Company Representatives")Representative, or otherwise, and shall not permit any such Person to:
(a) solicit, assist, initiate, encourage or otherwise knowingly facilitate facilitate, (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding, other than a confidentiality agreement permitted by an in accordance with Section 5.3) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an a Company Acquisition Proposal for the CompanyProposal;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an a Company Acquisition Proposal for the CompanyProposal;
(c) make a Company Change in Recommendation;
(d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Company Acquisition Proposal for the Company (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Company Acquisition Proposal for the Company for a period of no more than five (5) Business Days following the formal announcement of such public announcement or public disclosure Company Acquisition Proposal will not be considered to be in violation of this Section 5.1(1) 5.1 provided the Company Board has rejected such Company Acquisition Proposal and reaffirmed affirmed the Company Board Recommendation before the end of such five (5) Business Day period (or in the event that the Company Meeting is scheduled to occur within such five (5) Business Day period, prior to the third (3rd) Business Day prior to the date of the Company Meeting)); or
(e) accept or enter into or publicly propose to enter into any agreement in respect of a Company Acquisition Proposal (other than a confidentiality agreement permitted by and in accordance with Section 5.3) or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Company).
(2) The Company shall, and shall cause its Subsidiaries and the Company its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an a Company Acquisition Proposal for the CompanyProposal, and in connection therewith the Company with such termination shall:
(a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data room, room and any confidential information, properties, facilities, books and records of the Company or any of its SubsidiariesSubsidiaries including by way of such online data room or other electronic delivery method; and
(b) promptly as soon as practicable and within three (3) Business Days after the date of this Agreement, request, and exercise all rights it has to require: require (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary of its Subsidiaries provided to any Person (other than the Purchaser), and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiaryof its Subsidiaries, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company represents and warrants that the Company has not waived any confidentiality, standstill or similar provision or restriction in any agreement to which the Company or any of its Subsidiaries is a Party, except to permit submissions of expressions of interest prior the date of this Agreement, and covenants and agrees that:
(a) the Company shall take all necessary action to enforce each confidentiality, standstill or similar provision or restriction in any agreement to which the Company or any of its Subsidiaries is a party; and
(b) neither the Company, nor any of its Subsidiaries nor any of their respective Representatives have released or will, without the prior written consent of the Purchaser (which may be withheld or delayed in the Purchaser’s sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company or any of its Subsidiaries, under any confidentiality, standstill or similar agreement or restriction to which the Company or any of its Subsidiaries is a party.
Appears in 1 contract
Samples: Arrangement Agreement (Mogo Finance Technology Inc.)
Company Non-Solicitation. (1) Except as expressly otherwise provided in this Article 5, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company and will not, nor shall it authorize or permit any of its Subsidiaries shall notto, and will use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "Company Representatives"), or otherwise, and shall not permit any such Person to:
(a) solicit, assist, initiate, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding, other than a confidentiality agreement permitted by an in accordance with Section 5.3Subsidiaries) any inquiry, proposal or offer that constitutes constitutes, or may could reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) regarding any inquiry, proposal or offer that constitutes constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal; provided, however, that (i) the Company may advise any Person making an unsolicited Acquisition Proposal (A) of the existence of the provisions in this Section 5.1 and (B) that such Acquisition Proposal does not constitute or is not reasonably expected to constitute or lead toto a Superior Proposal when the Company Board has so determined, an and (ii) the Company may ascertain facts from the party making such Acquisition Proposal for the Companysole purpose of the Company Board informing itself about the Acquisition Proposal and the party making it;
(c) make a Company Change in Recommendation;
(d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal for the Company (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, any Acquisition Proposal for the Company for a period of no more than five ten (10) Business Days following such public announcement or public disclosure will shall not be considered to be in a violation of this Section 5.1(1) provided the Company Board has rejected such Acquisition Proposal and reaffirmed the Company Board Recommendation before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting5.1(1)(d)); or
(e) accept or enter into (other than a confidentiality agreement permitted by and an Acceptable Confidentiality Agreement in accordance with Section 5.3) or publicly propose to accept or enter into any agreement, arrangement or understanding or arrangement in respect of an Acquisition Proposal for the Company.
(2) The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, negotiations or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) with respect to any inquiry, proposal or offer that constitutes, or may could reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal, and in connection therewith the Company with such termination shall:
(a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data roomRoom, and any confidential information, properties, facilities, books and records of the Company or any of its SubsidiariesCompany; and
(b) as promptly as reasonably practicable request, and exercise all rights it has to require: (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary its Subsidiaries provided to any Person other than the Purchaser, Purchaser or AcquireCo and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiaryits Subsidiaries, using and, in each case, shall use its commercially reasonable best efforts to ensure that such requests are fully complied with in accordance with the terms of such any rights or entitlementsentitlements of the Company in respect thereof.
(3) The Company represents and warrants to Purchaser that the Company has not waived any confidentiality, standstill or similar agreement or restriction to which the Company is a party, except to permit submissions of expressions of interest prior to the date of this Agreement, and covenants and agrees that (i) the Company shall use reasonable best efforts to enforce each confidentiality, standstill or similar agreement or restriction to which the Company is a party and (ii) neither the Company nor any of its Representatives have released or will, without the prior written consent of Purchaser (which may be withheld, conditioned or delayed in Purchaser’s sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations with respect to the Company, under any confidentiality, standstill or similar agreement or restriction to which the Company is a party; provided, however, that the automatic termination or release of such standstill and similar covenants of any such agreements as the result of entering into this Agreement will not constitute a breach of this Section 5.1(3).
Appears in 1 contract
Company Non-Solicitation. (1) Except as expressly provided in this Article 5, the Company and its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "“Company Representatives"”), or otherwise, and shall not permit any such Person to:
(a) solicit, assist, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding, other than a confidentiality agreement permitted by an in accordance with Section 5.3) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its Affiliates) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company;
(c) make a Company Change in Recommendation;
(d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal for the Company (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for the Company for a period of no more than five Business Days following such public announcement or public disclosure will not be considered to be in violation of this Section 5.1(1) provided the Company Board has rejected such Acquisition Proposal and reaffirmed the Company Board Recommendation before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting)); or
(e) accept or enter into (other than a confidentiality agreement permitted by and in accordance with Section 5.3) or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Company.
(2) The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its Affiliates) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company, and in connection therewith the Company shall:
(a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data room, and any confidential information, properties, facilities, books and records of the Company or any of its Subsidiaries; and
(b) promptly request, and exercise all rights it has to require: (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any Person other than the Purchaser, and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company represents and warrants that, since January 1, 2016, the Company has not waived any confidentiality, standstill, non-disclosure, non-solicitation, use, business purpose or similar agreement, restriction or covenant to which the Company or any Subsidiary is a party, and further covenants and agrees that (i) the Company shall take all necessary action to enforce each confidentiality, standstill, non-disclosure, non- solicitation, use, business purpose or similar agreement, restriction or covenant to which the Company or any Subsidiary is a party, and (ii) neither the Company, nor any Subsidiary, nor any of the Company Representatives have or will, without the prior written consent of the Parent and the Purchaser (which may be withheld or delayed in the Parent and Purchaser’s sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company or any of its Subsidiaries under any confidentiality, standstill, non-disclosure, non-solicitation, use, business purpose or similar agreement, restriction or covenant to which the Company or any Subsidiary is a party (it being acknowledged by the Parent and the Purchaser that the automatic termination or release of any standstill restrictions of any such agreements as the result of entering into of this Agreement will not constitute a breach of this Section 5.1(3)).
Appears in 1 contract
Company Non-Solicitation. (1) Except as expressly provided in this Article 5, the Company and its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "Company Representatives"), or otherwise, and shall not permit any such Person to:
(a) solicit, assist, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding, other than a confidentiality agreement permitted by an in accordance with Section 5.3) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its Affiliates) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company;
(c) make a Company Change in Recommendation;
(d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal for the Company (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for the Company for a period of no more than five Business Days following such public announcement or public disclosure will not be considered to be in violation of this Section 5.1(1) provided the Company Board has rejected such Acquisition Proposal and reaffirmed the Company Board Recommendation before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting)); or
(e) accept or enter into (other than a confidentiality agreement permitted by and in accordance with Section 5.3) or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Company.
(2) The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its Affiliates) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company, and in connection therewith the Company shall:
(a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data room, and any confidential information, properties, facilities, books and records of the Company or any of its Subsidiaries; and
(b) promptly request, and exercise all rights it has to require: (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any Person other than the Purchaser, and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
Appears in 1 contract
Company Non-Solicitation. (1) Except as expressly otherwise provided in this Article 5, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, the Company and its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively "Company Representatives")Representative, or otherwise, and shall not permit any such Person to:
(a) solicit, assist, initiate, encourage or otherwise knowingly facilitate facilitate, (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding, other than a confidentiality agreement permitted by an in accordance with Section 5.3) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal;
(c) make a Company Change in Recommendation;
(d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal for the Company (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, an Acquisition Proposal for the Company for a period of no more than five (5) Business Days following the formal announcement of such public announcement or public disclosure Acquisition Proposal will not be considered to be in violation of this Section 5.1(1) 5.1 provided the Company Board has rejected such Acquisition Proposal and reaffirmed affirmed the Company Board Recommendation before the end of such five (5) Business Day period (or in the event that the Company Meeting is scheduled to occur within such five (5) Business Day period, prior to the third (3rd) Business Day prior to the date of the Company Meeting)); or
(e) accept or enter into or publicly propose to enter into any agreement in respect of an Acquisition Proposal (other than a confidentiality agreement permitted by and in accordance with Section 5.3) or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Company).
(2) The Company shall, and shall cause its Subsidiaries and the Company its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parent, the Purchaser and its AffiliatesPurchaser) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the CompanyProposal, and in connection therewith the Company with such termination shall:
(a) immediately discontinue access to and disclosure of all information, including the Company Data Room and any other data room, room and any confidential information, properties, facilities, books and records of the Company or any of its SubsidiariesSubsidiaries including by way of such online data room or other electronic delivery method; and
(b) promptly as soon as practicable and within three (3) Business Days after the date of this Agreement, request, and exercise all rights it has to require: require (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary of its Subsidiaries provided to any Person (other than the Purchaser), and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiaryof its Subsidiaries, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company represents and warrants that the Company has not waived any confidentiality, standstill or similar provision or restriction in any agreement to which the Company or any of its Subsidiaries is a Party, except to permit submissions of expressions of interest prior the date of this Agreement, and covenants and agrees that:
(a) the Company shall take all necessary action to enforce each confidentiality, standstill or similar provision or restriction in any agreement to which the Company or any of its Subsidiaries is a party; and
(b) neither the Company, nor any of its Subsidiaries nor any of their respective Representatives have released or will, without the prior written consent of the Purchaser (which may be withheld or delayed in the Purchaser's sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person's obligations respecting the Company or any of its Subsidiaries, under any confidentiality, standstill or similar agreement or restriction to which the Company or any of its Subsidiaries is a party.
Appears in 1 contract
Samples: Arrangement Agreement (Mogo Inc.)
