Company Non-Solicitation. (a) On and after the date of this Agreement, except as otherwise provided in this Agreement, the Company and the Company Subsidiaries shall not, directly or indirectly, through any officer, director, employee, advisor, representative, agent or otherwise, and shall instruct and use commercially reasonable efforts to cause its and its Company Subsidiaries respective representatives not to: (i) make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any other Person (including any of its officers or employees) relating to any Company Acquisition Proposal, or furnish to any Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek to do any of the foregoing; (ii) engage in any discussions or negotiations regarding, or provide any information with respect to, or otherwise co-operate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or complete any Company Acquisition Proposal, provided that, for greater certainty, the Company may advise any Person making an unsolicited Company Acquisition Proposal that such Company Acquisition Proposal does not constitute a Company Superior Proposal when the Company Board has so determined; (iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any manner adverse to Harvest, the approval or recommendation of the Company Board or any committee thereof of this Agreement or the Transactions; (iv) approve, recommend or remain neutral with respect to, or propose publicly to approve, recommend or remain neutral with respect to, any Company Acquisition Proposal; or (v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or undertaking related to any Company Acquisition Proposal; provided, however, that nothing contained in this Section 8.21(a) or any other provision of this Agreement shall prevent the Company Board from, and the Company Board shall be permitted, prior to the ParentCo Meeting, to engage in discussions or negotiations with, or respond to enquiries from any Person that has made a bona fide unsolicited written Company Acquisition Proposal that did not result from a breach of this Section 8.21 that the Company Board has determined constitutes a Company Superior Proposal, or provide information pursuant to Section 8.21(d) to any such Person, in each case, where the requirements of Section 8.21(d) are met. (b) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any Person (other than Harvest) with respect to any potential Company Acquisition Proposal and, in connection therewith, the Company will discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise). The Company agrees not to release any third party from any confidentiality, non-solicitation or standstill agreement to which such third party is a party, or terminate, modify, amend or waive the terms thereof and the Company undertakes to enforce, or cause its Subsidiaries to enforce, all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or any of its Subsidiaries have entered into prior to the date hereof or enter into after the date hereof. (c) Prior to the ParentCo Meeting, the Company shall immediately provide notice to Harvest of any bona fide Company Acquisition Proposal or any proposal, inquiry or offer that could lead to a Company Acquisition Proposal or any amendments to the foregoing or any request for non-public information relating to the Company or any of its Subsidiaries in connection with such a Company Acquisition Proposal or potential Company Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Company or any member of the Company Board that it is considering making, or has made, a Company Acquisition Proposal. Such notice to Harvest shall be made, from time to time, first immediately orally and then promptly (and in any event within 24 hours) in writing and shall indicate the identity of the Person making such proposal, inquiry or contact, all material terms thereof, including price, and such other details of the proposal, inquiry or contact known to the Company, and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing. The Company shall keep Harvest promptly and fully informed of the status, including any change to the material terms, of any such Company Acquisition Proposal, offer, inquiry or request and will respond promptly to all inquiries by Harvest with respect thereto. (d) Prior to the ParentCo Meeting, if the Company Board receives a request for material non- public information from a Person who proposes to the Company a bona fide Company Acquisition Proposal that did not result from a breach of this Section 8.21, or indicates a possible intent to do so, the Company may contact the Person making the Company Acquisition Proposal and its representatives solely for the purpose of clarifying the terms and conditions of such Company Acquisition Proposal and the likelihood of its consummation so as to determine whether such Company Acquisition Proposal is a Company Superior Proposal; provided that the Company shall promptly provide Harvest with copies of all correspondence, including email and other electronic and digital communications, and information provided to or received from such Person. If: (x) the Company Board determines that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (y) in the opinion of the Company Board, acting in good faith and on written advice from its outside legal counsel and financial advisors, the failure to provide such party with access to information regarding the Company and its Subsidiaries would be inconsistent with the fiduciary duties of the Company Board, then, and only in such case, the Company may provide such Person with access to information regarding the Company and its Subsidiaries, subject to the execution of a confidentiality agreement which is customary in such situations and which, in any event and taken as a whole, is no less favourable to the Company than the Confidentiality Agreement; provided that the Company sends a copy of any such confidentiality agreement to Harvest promptly upon its execution and Harvest is provided with copies of the information provided to such Person which was not previously provided to or made available to Harvest and immediately provided with access to similar information to which such Person was provided. (e) The Company agrees that it will not accept, approve or enter into any agreement (a "Company Proposed Agreement"), other than a confidentiality agreement as contemplated by Section 8.21(d), with any Person providing for or to facilitate any Company Acquisition Proposal unless: (i) the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that the Company Acquisition Proposal constitutes a Company Superior Proposal;
Appears in 1 contract
Samples: Business Combination Agreement
Company Non-Solicitation.
(a) On and after the date of this Agreement, except as otherwise provided in this Agreement, the The Company and the Company its Subsidiaries shall not, directly or indirectly, through any officer, director, employee, advisor, representative, agent or otherwise, and shall instruct and use commercially reasonable efforts to cause its and its Company Subsidiaries respective representatives not to:
(i) make, solicit, assist, initiate, knowingly encourage or otherwise facilitate any inquiries, proposals or offers from any other Person (including any of its officers or employees) relating to any Company Acquisition ProposalProposal for the Company, or furnish to any Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or knowingly encourage, any effort or attempt by any other Person to do or seek to do any of the foregoing;
(ii) engage in any discussions or negotiations with any other Person regarding, or provide any information to any other Person with respect to, or otherwise co-operate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or complete any Company Acquisition ProposalProposal for the Company, provided that, for greater certainty, the Company may advise any Person making an unsolicited Company Acquisition Proposal that such Company Acquisition Proposal does not constitute constitute, and/or could not reasonably be expected to result in, a Company Superior Proposal when the Company Board has so determineddetermined (and such advice shall not constitute a breach of any provision of this Section 7.1);
(iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any manner adverse to HarvestXxxxxx, the approval or recommendation of the Company Board or any committee thereof of this Agreement or the TransactionsArrangement;
(iv) approve, recommend or remain neutral with respect to, or propose publicly to approve, recommend 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 an Acquisition Proposal, or any material amendment thereto, until 10 calendar days following the public announcement of such Acquisition Proposal shall not be considered a violation of this Subsection 7.1(a)(iii)); or
(v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, understanding, arrangement or undertaking related to any Company Acquisition Proposal; , provided, however, that nothing notwithstanding anything contained in this Section 8.21(aSubsection 7.1(a) or in any other provision of this Agreement shall prevent the Company Board from, and the Company Board shall be permitted, prior to the ParentCo Meeting, permitted to engage in discussions or negotiations with, or respond to enquiries from any Person that has made a bona fide an unsolicited written Company Acquisition Proposal that did not result from a breach of this Section 8.21 that the Company Board has determined constitutes or could reasonably be expected to result in a Company Superior Proposal, or provide information pursuant to Section 8.21(dSubsection 7.1(d) to any such Person, in each case, Person where the requirements of that Section 8.21(d) are met.
(b) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any Person (other than HarvestXxxxxx) with respect to any potential Company Acquisition Proposal and, in connection therewith, the Company will discontinue access to any of its confidential information (and shall as promptly as reasonably practicable request the return or destruction of all confidential information provided in connection therewith to the extent such information has not establish already been returned or allow access to any of its confidential information, or any data room, virtual or otherwise)destroyed. The Company agrees not to release any third party from any confidentiality, non-solicitation or standstill agreement to which such third party is a party, or terminate, modify, amend or waive the terms thereof and the Company undertakes to enforce, or cause its Subsidiaries to enforce, all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or any of its Subsidiaries have entered into prior to the date hereof or enter into after the date hereof.
(c) Prior to the ParentCo Meeting, the The Company shall immediately promptly (and in any event within one calendar day of receipt by the Company) provide notice to Harvest Xxxxxx, at first orally and then in writing, of its receipt of (i) any bona fide Company Acquisition Proposal for the Company, (ii) any amendment in writing to any such Acquisition Proposal, and any other material amendment to any such Acquisition Proposal, (iii) any request to engage in discussions or any proposal, inquiry or offer that could lead to a negotiations with the Company in connection with an Acquisition Proposal or any amendments to for the foregoing or Company and/or (iv) any request for non-public information relating to the Company or any of its Subsidiaries in connection with such a Company Acquisition Proposal or potential Company Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Company or Company, any member of the Company Board or such Subsidiary that it is considering making, or has made, a Company an Acquisition ProposalProposal for the Company. Such notice to Harvest shall be made, from time to time, first immediately orally and then promptly (and in any event within 24 hours) in writing and shall indicate the identity of the Person making such proposal, inquiry or contact, all material terms thereof, including price, and such other details of the proposal, inquiry or contact thereof known to the Company, and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of (if in writing). Thereafter, the foregoing. The Company shall keep Harvest Xxxxxx promptly and fully informed of the status, including any change to the material terms, of any such Company Acquisition Proposal, offer, inquiry or request and will respond promptly to all reasonable inquiries by Harvest Xxxxxx with respect thereto.
(d) Prior to the ParentCo Meeting, if If the Company Board receives a request for material non- non-public information from a Person who proposes to the Company a an unsolicited bona fide Company written Acquisition Proposal that did not result from a breach of this Section 8.21, or indicates a possible intent to do so, for the Company may contact the Person making the Company Acquisition Proposal and its representatives solely for the purpose of clarifying the terms and conditions of such Company Acquisition Proposal and the likelihood of its consummation so as to determine whether such Company Acquisition Proposal is a Company Superior Proposal; provided that the Company shall promptly provide Harvest with copies of all correspondence, including email and other electronic and digital communications, and information provided to or received from such Person. If: (x) the Company Board determines that such Company Acquisition Proposal constitutes or could reasonably be expected to result in a Company Superior Proposal; and (y) in the opinion of the Company Board, acting in good faith and on written advice from its outside legal counsel and financial advisors, the failure to provide such party with access to information regarding the Company and its Subsidiaries would be inconsistent with the fiduciary duties of the Company Board, then, and only in such case, the Company may provide such Person with access to information regarding the Company and its Subsidiaries, subject to the execution of a confidentiality and standstill agreement which is customary in such situations and which, in any event and taken as a whole, is no less favourable to the Company than the Confidentiality Agreement; provided that before the Company provides such Person with access to any non-public information, the Company sends a copy of any such confidentiality and standstill agreement to Harvest Xxxxxx promptly and in any event not less than 24 hours upon its execution and Harvest thereafter Xxxxxx is provided with copies of the access to any information that was provided to such Person which was and not previously provided to or made available to Harvest and immediately provided with access to similar information to which such Person was providedXxxxxx.
(e) The Company agrees that it will not accept, approve or enter into any agreement (a "Company “Proposed Agreement"”), other than a confidentiality agreement as contemplated by Section 8.21(dSubsection 7.1(d), with any Person providing for or to facilitate any Company Acquisition Proposal unless:for the Company unless:
(i) the Company Board determines has determined that the Acquisition Proposal constitutes a Superior Proposal;
(ii) the Company Meeting has not occurred;
(iii) the Company has complied, in all material respects, with all requirements of Subsections 7.1(a) through 7.1(d) inclusive;
(iv) the Company has provided Xxxxxx with a notice in writing that such Acquisition Proposal is a Superior Proposal and the Company Board proposes to accept, approve, recommend or execute a Proposed Agreement with respect to such Acquisition Proposal, together with a copy of any Proposed Agreement relating to such Superior Proposal, such documents to be so provided to Xxxxxx not less than five business days prior to the proposed acceptance, approval, recommendation or execution of the Proposed Agreement by the Company;
(v) five business days shall have elapsed from the date Xxxxxx received the notice and documentation referred to in Subsection 7.1(e)(iv) from the Company and, if Xxxxxx has proposed to amend the terms of the Arrangement in accordance with Subsection 7.1(f), the Company Board shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that the Acquisition Proposal continues to be a Superior Proposal compared to the proposed amendment to the terms of the Arrangement by Xxxxxx;
(vi) the Company concurrently terminates this Agreement pursuant to Section 8.2(a)(iv)(B); and
(vii) the Company has previously, or concurrently will have, paid to Xxxxxx the Company Termination Payment; and the Company further agrees that it will not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Xxxxxx the approval or recommendation of the Arrangement, nor accept, approve or recommend any Acquisition Proposal unless the applicable requirements of this Section 7.1(e)(i) through 7.1(e)(v) have been satisfied.
(f) The Company acknowledges and agrees that, during the five business day periods referred to in Subsections 7.1(e)(iv) and 7.1(e)(v) or such longer period as the Company may approve for such purpose, Xxxxxx shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement and the Arrangement and the Company shall co-operate with Xxxxxx with respect thereto, including negotiating in good faith with Xxxxxx to enable Xxxxxx to make such adjustments to the terms and conditions of this Agreement and the Arrangement as Xxxxxx xxxxx appropriate and as would enable Xxxxxx to proceed with the Arrangement and any related transactions on such adjusted terms. The Company Board will review any proposal made by Xxxxxx in good faith to amend the terms of the Arrangement in order to determine, in good faith in the exercise of its fiduciary duties and consistent with Subsection 7.1(a), whether Walter’s proposal to amend the Arrangement would result in the Acquisition Proposal not being a Superior Proposal compared to the proposed amendment to the terms of the Arrangement. If the Company Board determines that an Acquisition Proposal is not a Superior Proposal as compared to the proposed amendment to the terms of the Arrangement, it will promptly enter into the proposed amendment to the Arrangement.
(g) The Company Board shall promptly (and in any event within two calendar days) reaffirm its recommendation of the Arrangement by press release after: (x) any Acquisition Proposal which the Company Board determines not to be a Superior Proposal is publicly announced or made; or (y) the Company Board determines that a proposed amendment to the terms of the Arrangement would result in the Acquisition Proposal which has been publicly announced or made not being a Superior Proposal, and Xxxxxx has so amended the terms of the Arrangement. Xxxxxx and its counsel shall be given a reasonable opportunity to review and financial comment on the form and content of any such press release, recognizing that whether or not such comments are appropriate will be determined by the Company, acting reasonably.
(h) Nothing in this Agreement shall prevent the Company Board from responding through a directors’ circular or otherwise as required by applicable Securities Laws to an Acquisition Proposal that it determines is not a Superior Proposal, or from withdrawing, modifying or changing its recommendation as a result of Xxxxxx having suffered a Xxxxxx Material Adverse Effect. Further, nothing in this Agreement shall prevent the Company Board from making any disclosure to the securityholders of the Company if the Company Board, acting in good faith and upon the advice of its legal advisors, shall have first determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Company Board or such disclosure is otherwise required under applicable Law; provided, however, that, notwithstanding the Company Board shall be permitted to make such disclosure, the Company Board shall not be permitted to make a Company Change in Recommendation, other than as permitted by Section 7.1(e) or the first sentence of this paragraph. Xxxxxx and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such disclosure, recognizing that whether or not such comments are appropriate will be determined by the Company, acting reasonably.
(i) The Company acknowledges and agrees that each successive modification to the terms and conditions of any Acquisition Proposal shall constitute a new Acquisition Proposal for the purposes of this Section 7.1.
(j) The Company shall ensure that the officers, directors and employees of the Company and its Subsidiaries and any investment bankers or other advisors or representatives retained by the Company and/or its Subsidiaries in connection with the transactions contemplated by this Agreement are aware of the provisions of this Section, and the Company shall be responsible for any breach of this Section 7.1 by such officers, directors, employees, investment bankers, advisors or representatives.
(k) If the Company provides Xxxxxx with the notice of an Acquisition Proposal contemplated in this Section 7.1 on a date that is less than seven calendar days prior to the Company Meeting, if requested by Xxxxxx, the Company shall adjourn the Company Meeting to a date that is not less than seven calendar days and not more than 10 calendar days after the date of such notice, provided, however, that the Company Acquisition Proposal constitutes Meeting shall not be adjourned or postponed to a Company Superior Proposal;date later than the seventh business day prior to the Outside Date.
Appears in 1 contract
Company Non-Solicitation.
(ai) On From the Signing Date until the earlier of the Effective Time and after the date termination of this AgreementAgreement in accordance with Section 9.01, except as otherwise provided in this Agreement(A) each Company shall, and shall cause the Company Subsidiaries, Parentco, and the Company Subsidiaries shall noteach Merger Sub and its and their respective officers and directors to, directly or indirectly, through any officer, director, employee, advisor, representative, agent or otherwiseimmediately cease, and shall instruct and use commercially reasonable efforts to cause its and its Company Subsidiaries their respective representatives not to:
(i) makeother Representatives to immediately cease, solicitall existing discussions, assist, initiate, encourage or otherwise facilitate negotiations and communications with any inquiries, proposals or offers from any other Person (including any of its officers or employees) relating Persons with respect to any Company Acquisition Proposal, (B) each Company shall not, and shall cause their respective Company Subsidiaries, Parentco, each Merger Sub and its and their respective officers and directors not to, and shall instruct and cause its other respective Representatives not to, directly or furnish to indirectly, (1) initiate, seek, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing any Person nonpublic information), whether publicly or otherwise, any information inquiries with respect to, or otherwise cooperate the making or submission of, a Company Acquisition Proposal, (2) enter into or engage in any way negotiations or discussions with, or assist provide any nonpublic information to, or participate inafford access to the business, facilitate properties, assets, books or encouragerecords of any of the Group Companies to, any effort Person (other than Tastemaker or attempt by any of its Representatives) relating to or for the purpose of encouraging or facilitating any Company Acquisition Proposal (other Person than to do state that the terms of this Agreement prohibit such discussions), (3) amend or seek grant any waiver or release under any standstill or similar agreement with respect to any class of equity interests of any Group Company, (4) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Company Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Company Acquisition Proposal, or (5) resolve or agree to do any of the foregoing;
(ii) engage in any discussions or negotiations regarding, or provide any information with respect to, foregoing or otherwise co-operate in any way with, authorize or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or complete any Company Acquisition Proposal, provided that, for greater certainty, the Company may advise any Person making an unsolicited Company Acquisition Proposal that such Company Acquisition Proposal does not constitute a Company Superior Proposal when the Company Board has so determined;
(iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any manner adverse to Harvest, the approval or recommendation of the Company Board or any committee thereof of this Agreement or the Transactions;
(iv) approve, recommend or remain neutral with respect to, or propose publicly to approve, recommend or remain neutral with respect to, any Company Acquisition Proposal; or
(v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or undertaking related to any Company Acquisition Proposal; provided, however, that nothing contained in this Section 8.21(a) or any other provision of this Agreement shall prevent the Company Board from, and the Company Board shall be permitted, prior to the ParentCo Meeting, to engage in discussions or negotiations with, or respond to enquiries from any Person that has made a bona fide unsolicited written Company Acquisition Proposal that did not result from a breach of this Section 8.21 that the Company Board has determined constitutes a Company Superior Proposal, or provide information pursuant to Section 8.21(d) to any such Person, in each case, where the requirements of Section 8.21(d) are met.
(b) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any Person (other than Harvest) with respect to any potential Company Acquisition Proposal and, in connection therewith, the Company will discontinue access to permit any of its confidential information Representatives to take any such action, (and C) each Group Company shall not establish or allow access to any of its confidential information, or any data room, virtual or otherwise). The Company agrees not to release provide any third party from and shall on the Signing Date, terminate access of any confidentiality, non-solicitation or standstill agreement to which such third party is a party, who has made or terminate, modify, amend or waive the terms thereof and the Company undertakes to enforce, or cause its Subsidiaries to enforce, all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or any of its Subsidiaries have entered into prior to the date hereof or enter into after the date hereof.
(c) Prior to the ParentCo Meeting, the Company shall immediately provide notice to Harvest of any bona fide Company Acquisition Proposal or any proposal, inquiry or offer that could lead to indicated an interest in making a Company Acquisition Proposal to any data room (virtual or actual) containing any amendments to nonpublic information of any Group Company and (D) within two Business Days of the foregoing Signing Date, Quality Gold shall demand the return or any request for destruction of all confidential, non-public information and materials that have been provided to third parties that have entered into confidentiality agreements relating to the Company or any of its Subsidiaries in connection with such a possible Company Acquisition Proposal or potential Company Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Company or any member of the Company Board that it is considering making, or has made, a Company Acquisition Proposal. Such notice to Harvest shall be made, from time to time, first immediately orally and then promptly (and in any event within 24 hours) in writing and shall indicate the identity of the Person making such proposal, inquiry or contact, all material terms thereof, including price, and such other details of the proposal, inquiry or contact known to the Company, and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing. The Company shall keep Harvest promptly and fully informed of the status, including any change to the material terms, of any such Company Acquisition Proposal, offer, inquiry or request and will respond promptly to all inquiries by Harvest with respect thereto.
(d) Prior to the ParentCo Meeting, if the Company Board receives a request for material non- public information from a Person who proposes to the Company a bona fide Company Acquisition Proposal that did not result from a breach of this Section 8.21, or indicates a possible intent to do so, the Company may contact the Person making the Company Acquisition Proposal and its representatives solely for the purpose of clarifying the terms and conditions of such Company Acquisition Proposal and the likelihood of its consummation so as to determine whether such Company Acquisition Proposal is a Company Superior Proposal; provided that the Company shall promptly provide Harvest with copies of all correspondence, including email and other electronic and digital communications, and information provided to or received from such Person. If: (x) the Company Board determines that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (y) in the opinion of the Company Board, acting in good faith and on written advice from its outside legal counsel and financial advisors, the failure to provide such party with access to information regarding the Company and its Subsidiaries would be inconsistent with the fiduciary duties of the Company Board, then, and only in such case, the Company may provide such Person with access to information regarding the Company and its Subsidiaries, subject to the execution of a confidentiality agreement which is customary in such situations and which, in any event and taken as a whole, is no less favourable to the Company than the Confidentiality Agreement; provided that the Company sends a copy of any such confidentiality agreement to Harvest promptly upon its execution and Harvest is provided with copies of the information provided to such Person which was not previously provided to or made available to Harvest and immediately provided with access to similar information to which such Person was provided.
(e) The Company agrees that it will not accept, approve or enter into any agreement (a "Company Proposed Agreement"), other than a confidentiality agreement as contemplated by Section 8.21(d), with any Person providing for or to facilitate any Company Acquisition Proposal unless:
(i) the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that the Company Acquisition Proposal constitutes a Company Superior Proposal;Group Company.
Appears in 1 contract
Samples: Business Combination Agreement (Tastemaker Acquisition Corp.)
Company Non-Solicitation.
(a) On and after the date of this Agreement, except as otherwise provided in this Agreement, the Company and the Company Subsidiaries shall not, directly or indirectly, through any officer, director, employee, advisor, representative, agent or otherwise, and shall instruct and use commercially reasonable efforts to cause its and its Company Subsidiaries respective representatives not to:
(i) make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any other Person (including any of its officers or employees) relating to any Company Acquisition Proposal, or furnish to any Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek to do any of the foregoing;
(ii) engage in any discussions or negotiations regarding, or provide any information with respect to, or otherwise co-operate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or complete any Company Acquisition Proposal, provided that, for greater certainty, the Company may advise any Person making an unsolicited Company Acquisition Proposal that such Company Acquisition Proposal does not constitute a Company Superior Proposal when the Company Board has so determined;
(iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any manner adverse to Harvest, the approval or recommendation of the Company Board or any committee thereof of this Agreement or the Transactions;
(iv) approve, recommend or remain neutral with respect to, or propose publicly to approve, recommend or remain neutral with respect to, any Company Acquisition Proposal; or
(v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or undertaking related to any Company Acquisition Proposal; provided, however, that nothing contained in this Section 8.21(a) or any other provision of this Agreement shall prevent the Company Board from, and the Company Board shall be permitted, prior to the ParentCo Meeting, to engage in discussions or negotiations with, or respond to enquiries from any Person that has made a bona fide unsolicited written Company Acquisition Proposal that did not result from a breach of this Section 8.21 that the Company Board has determined constitutes a Company Superior Proposal, or provide information pursuant to Section 8.21(d) to any such Person, in each case, where the requirements of Section 8.21(d) are met.
(b) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any Person (other than Harvest) with respect to any potential Company Acquisition Proposal and, in connection therewith, the Company will discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise). The Company agrees not to release any third party from any confidentiality, non-solicitation or standstill agreement to which such third party is a party, or terminate, modify, amend or waive the terms thereof and the Company undertakes to enforce, or cause its Subsidiaries to enforce, all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or any of its Subsidiaries have entered into prior to the date hereof or enter into after the date hereof.
(c) Prior to the ParentCo Meeting, the Company shall immediately provide notice to Harvest of any bona fide Company Acquisition Proposal or any proposal, inquiry or offer that could lead to a Company Acquisition Proposal or any amendments to the foregoing or any request for non-public information relating to the Company or any of its Subsidiaries in connection with such a Company Acquisition Proposal or potential Company Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Company or any member of the Company Board that it is considering making, or has made, a Company Acquisition Proposal. Such notice to Harvest shall be made, from time to time, first immediately orally and then promptly (and in any event within 24 hours) in writing and shall indicate the identity of the Person making such proposal, inquiry or contact, all material terms thereof, including price, and such other details of the proposal, inquiry or contact known to the Company, and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing. The Company shall keep Harvest promptly and fully informed of the status, including any change to the material terms, of any such Company Acquisition Proposal, offer, inquiry or request and will respond promptly to all inquiries by Harvest with respect thereto.
(d) Prior to the ParentCo Meeting, if the Company Board receives a request for material non- public information from a Person who proposes to the Company a bona fide Company Acquisition Proposal that did not result from a breach of this Section 8.21, or indicates a possible intent to do so, the Company may contact the Person making the Company Acquisition Proposal and its representatives solely for the purpose of clarifying the terms and conditions of such Company Acquisition Proposal and the likelihood of its consummation so as to determine whether such Company Acquisition Proposal is a Company Superior Proposal; provided that the Company shall promptly provide Harvest with copies of all correspondence, including email and other electronic and digital communications, and information provided to or received from such Person. If: (x) the Company Board determines that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (y) in the opinion of the Company Board, acting in good faith and on written advice from its outside legal counsel and financial advisors, the failure to provide such party with access to information regarding the Company and its Subsidiaries would be inconsistent with the fiduciary duties of the Company Board, then, and only in such case, the Company may provide such Person with access to information regarding the Company and its Subsidiaries, subject to the execution of a confidentiality agreement which is customary in such situations and which, in any event and taken as a whole, is no less favourable to the Company than the Confidentiality Agreement; provided that the Company sends a copy of any such confidentiality agreement to Harvest promptly upon its execution and Harvest is provided with copies of the information provided to such Person which was not previously provided to or made available to Harvest and immediately provided with access to similar information to which such Person was provided.
(e) The Company agrees that it will not accept, approve or enter into any agreement (a "“Company Proposed Agreement"”), other than a confidentiality agreement as contemplated by Section 8.21(d), with any Person providing for or to facilitate any Company Acquisition Proposal unless:unless:
(i) the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that the Company Acquisition Proposal constitutes a Company Superior Proposal;
(ii) the Company Board determines in good faith after consultation with outside legal counsel and financial advisors that the failure to take action with respect to such Company Superior Proposal would be inconsistent with its fiduciary duties under applicable Laws;
(iii) the ParentCo Meeting has not occurred;
(iv) the Company has complied with Sections 8.21(a) through 8.21(d) inclusive;
(v) the Company has provided Harvest with a notice in writing that there is a Company Superior Proposal together with all documentation related to and detailing the Company Superior Proposal, including a copy of any Company Proposed Agreement relating to such Company Superior Proposal, and a written notice from the Company Board regarding the value in financial terms that the Company Board has determined should be ascribed to any non-cash consideration offered under the Company Superior Proposal, such documents to be so provided to Harvest not less than five (5) Business Days prior to the proposed acceptance, approval, recommendation or execution of the Company Proposed Agreement by the Company;
(vi) five (5) Business Days shall have elapsed from the date Harvest received the notice and documentation referred to in Section 8.21(e)(v) from the Company and, if Harvest has collectively proposed to amend the terms of the Transactions in accordance with Section 8.21(f), the Company Board shall have determined, in good faith, after consultation with its outside legal counsel, that the Company Acquisition Proposal is a Company Superior Proposal compared to the proposed amendment to the terms of the Transactions by Harvest;
(vii) the Company concurrently terminates this Agreement pursuant to Section 12.01(g);
(viii) the Company has previously, or concurrently will have, paid to Harvest the Termination Fee;
(ix) and the Company further agrees that it will not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Harvest the approval or recommendation of the Transactions, nor accept, approve or recommend any Company Acquisition Proposal unless the requirements of this Section 8.21(e)(i) through 8.21(e)(vii) have been satisfied.
(f) The Company acknowledges and agrees that, during the five (5) Business Day period referred to in Sections 8.21(e)(v) and 8.21(e)(vi) or such longer period as the Company may approve for such purpose, Harvest shall have the opportunity, but not the obligation, to propose to amend the terms of this Agreement and the Transactions and the Company shall co-operate with Harvest with respect thereto, including negotiating in good faith with Harvest to enable Harvest to make such adjustments to the terms and conditions of this Agreement and the Transactions as Harvest deems appropriate and as would enable Harvest to proceed with the Transactions on such adjusted terms. The Company Board will review diligently and in good faith any proposal by Harvest to amend the terms of the Transactions in order to determine, in good faith in the exercise of its fiduciary duties and consistent with Section 8.22(a), whether Harvest’s proposal to amend the Transactions would result in the Company Acquisition Proposal not being a Company Superior Proposal compared to the proposed amendment to the terms of the Transactions.
(g) The Company Board shall promptly reaffirm and communicate its recommendation of the Transactions by press release after: (x) any Company Acquisition Proposal which the Company Board determines not to be a Company Superior Proposal is publicly announced or made; or (y) the Company Board determines that a proposed amendment to the terms of the Transactions would result in the Company Acquisition Proposal which has been publicly announced or made not being a Company Superior Proposal, and Harvest has so amended the terms of the Transactions . Harvest and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release, recognizing that whether or not such comments are required by applicable Laws or the fiduciary duties of the Company Board will be determined by the Company, acting reasonably and upon the advice of legal counsel.
(h) Nothing in this Agreement shall prevent the Company Board from complying with its disclosure obligations under applicable Law. Further, nothing in this Agreement shall prevent the Company Board from making any disclosure to the Company Unitholders to the extent the Company Board, acting in good faith and upon the written advice of its legal advisors, shall have first determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Company Board or such disclosure is otherwise required under applicable Law, provided, however, that, notwithstanding the Company Board shall be permitted to make such disclosure, the Company Board shall not be permitted to make a Company Change in Recommendation, other than as permitted by Section 8.21(e) or the first sentence of this paragraph. Harvest and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such disclosure, recognizing that whether or not such comments are required by applicable Laws or the fiduciary duties of the Company Board will be determined by the Company, acting reasonably and upon the advice of legal counsel.
(i) The Company acknowledges and agrees that each successive modification of any Company Acquisition Proposal shall constitute a new Company Acquisition Proposal for the purposes of this Section 8.21.
(j) The Company shall ensure that the officers, managers and employees of the Company and its Subsidiaries and any investment bankers or other advisors or representatives retained by the Company and/or its Subsidiaries in connection with the transactions contemplated by this Agreement are aware of the provisions of this Section 8.21; and the Company shall be responsible for any action or inaction that would constitute a breach of this Section 8.21 by such officers, directors, employees, investment bankers, advisors or representatives as if such Persons or entities were parties hereto.
(k) If the Company provides Harvest with the notice of a Company Acquisition Proposal contemplated in this Section 8.21 on a date that is less than seven (7) calendar days prior to the ParentCo Meeting, Harvest shall adjourn the ParentCo Meeting to a date that is not less than seven (7) calendar days and not more than ten (10) calendar days after the date of such notice, provided, however, that the ParentCo Meeting shall not be adjourned or postponed to a date later than the seventh (7th) Business Day prior to the Outside Date.
Appears in 1 contract
Samples: Business Combination Agreement (Harvest Health & Recreation Inc.)
Company Non-Solicitation.
(a) On and after The Company agrees that, during the date of this Agreement, except as otherwise provided in this AgreementPre-Closing Period, the Company and the Company Subsidiaries shall not, nor shall it authorize any of its Representatives to, directly or indirectly, through any officer, director, employee, advisor, representative, agent or otherwise, and shall instruct and use commercially reasonable efforts to cause its and its Company Subsidiaries respective representatives not to:
: (i) make, solicit, assistinitiate or knowingly encourage, initiateinduce or facilitate the communication, encourage making, submission or announcement of any proposal or inquiry or take any action that could reasonably be expected to lead to a proposal or inquiry for an acquisition of some or all of the assets or equity of Company whether by merger, purchase or otherwise facilitate (“Transaction Proposal”); (ii) furnish any inquiriesnon-public information regarding the Company to any Person in connection with or in response to a proposal or inquiry about a Transaction Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Transaction Proposal; (iv) approve, proposals endorse or offers from recommend any other Person Transaction Proposal; (including v) execute or enter into any letter of its officers intent or employees) any Contract contemplating or otherwise relating to any Company Acquisition Transaction Proposal, ; or furnish to any Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek (vi) publicly propose to do any of the foregoing;
(ii) engage in any discussions or negotiations regarding, or provide any information with respect to, or otherwise co-operate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or complete any Company Acquisition Proposal, provided that, for greater certainty. Without limiting the generality of the foregoing, the Company may advise any Person making an unsolicited Company Acquisition Proposal that such Company Acquisition Proposal does not constitute a Company Superior Proposal when the Company Board has so determined;
(iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualifyacknowledges and agrees that, in the event any manner adverse to Harvest, the approval or recommendation Representative of the Company Board (whether or not such Representative is purporting to act on behalf of the Company) takes any committee thereof of this Agreement or action that, if taken by the Transactions;
(iv) approveCompany, recommend or remain neutral with respect to, or propose publicly to approve, recommend or remain neutral with respect to, any Company Acquisition Proposal; or
(v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or undertaking related to any Company Acquisition Proposal; provided, however, that nothing contained in this Section 8.21(a) or any other provision of this Agreement shall prevent the Company Board from, and the Company Board shall be permitted, prior to the ParentCo Meeting, to engage in discussions or negotiations with, or respond to enquiries from any Person that has made a bona fide unsolicited written Company Acquisition Proposal that did not result from would constitute a breach of this Section 8.21 that 5.3, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 5.3 by the Company Board has determined constitutes a Company Superior Proposal, or provide information pursuant to Section 8.21(d) to any such Person, in each case, where the requirements for purposes of Section 8.21(d) are metthis Agreement.
(b) If the Company or any Representative of the Company receives a Transaction Proposal at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than one Business Day after the Company becomes aware of such Transaction Proposal) advise Parent orally and in writing of such Transaction Proposal (including the identity of the Person making or submitting such Transaction Proposal, and the material terms thereof). The Company shall keep Parent reasonably informed with respect to the status and material terms of any such Transaction Proposal and any material modification or proposed material modification thereto.
(c) The Company shall immediately cease and cause to be terminated any existing discussions or discussions, negotiations and communications with any Person (other than Harvest) with respect that relate to any potential Company Acquisition Transaction Proposal and, in connection therewith, the Company will discontinue access to any as of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise). The Company agrees not to release any third party from any confidentiality, non-solicitation or standstill agreement to which such third party is a party, or terminate, modify, amend or waive the terms thereof and the Company undertakes to enforce, or cause its Subsidiaries to enforce, all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or any of its Subsidiaries have entered into prior to the date hereof of this Agreement and request the destruction or enter into after the date hereof.
(c) Prior to the ParentCo Meeting, the Company shall immediately provide notice to Harvest return of any bona fide Company Acquisition Proposal or any proposal, inquiry or offer that could lead to a Company Acquisition Proposal or any amendments to the foregoing or any request for non-public nonpublic information relating to of the Company or any of its Subsidiaries in connection with provided to such a Company Acquisition Proposal or potential Company Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Company or any member of the Company Board that it is considering making, or has made, a Company Acquisition Proposal. Such notice to Harvest shall be made, from time to time, first immediately orally and then promptly (and in any event within 24 hours) in writing and shall indicate the identity of the Person making such proposal, inquiry or contact, all material terms thereof, including price, and such other details of the proposal, inquiry or contact known to the Company, and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing. The Company shall keep Harvest promptly and fully informed of the status, including any change to the material terms, of any such Company Acquisition Proposal, offer, inquiry or request and will respond promptly to all inquiries by Harvest with respect theretoPerson.
(d) Prior to For purposes of this Section 5.3, the ParentCo Meeting, if the Company Board receives a request for material non- public information from a Person who proposes incurrence of advances to the Company by Long Hill that are permitted by Section 5.1(b), conversion of those advances and accrued expenses into shares of Company Common Stock, in each case during the Pre-Closing Period, shall not constitute a bona fide Transaction Proposal, if such event is permitted under Section 5.1(b). However, any such advances that are not converted into shares of Company Acquisition Proposal that did not result from a breach Common Stock as of this Section 8.21, or indicates a possible intent to do so, the Company may contact the Person making the Company Acquisition Proposal and its representatives solely for the purpose of clarifying the terms and conditions of such Company Acquisition Proposal and the likelihood of its consummation so as to determine whether such Company Acquisition Proposal is a Company Superior Proposal; provided that the Company Closing Date shall promptly provide Harvest with copies of all correspondence, including email and other electronic and digital communications, and information provided to or received from such Person. If: (x) the Company Board determines that such Company Acquisition Proposal constitutes a Company Superior Proposal; and (y) be included in the opinion of the Company Board, acting in good faith and on written advice from its outside legal counsel and financial advisors, the failure to provide such party with access to information regarding the Company and its Subsidiaries would be inconsistent with the fiduciary duties of the Company Board, then, and only in such case, the Company may provide such Person with access to information regarding the Company and its Subsidiaries, subject to the execution of a confidentiality agreement which is customary in such situations and which, in any event and taken as a whole, is no less favourable to the Company than the Confidentiality Agreement; provided that the Company sends a copy of any such confidentiality agreement to Harvest promptly upon its execution and Harvest is provided with copies of the information provided to such Person which was not previously provided to or made available to Harvest and immediately provided with access to similar information to which such Person was providedLong Hill Liabilities.
(e) The Company agrees that it will not accept, approve or enter into any agreement (a "Company Proposed Agreement"), other than a confidentiality agreement as contemplated by Section 8.21(d), with any Person providing for or to facilitate any Company Acquisition Proposal unless:
(i) the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that the Company Acquisition Proposal constitutes a Company Superior Proposal;
Appears in 1 contract
Samples: Merger Agreement (Orgenesis Inc.)
