Go-Shop; Acquisition Proposals. (a) Except as permitted by this Section 5.3, from and after the date hereof until the Acceptance Time or, if earlier, the termination of this Agreement in accordance with Article VII, the Company shall not, and shall cause each of its Subsidiaries not to, and shall use its reasonable best efforts to cause its representatives not to, directly or indirectly (i) solicit, initiate or knowingly facilitate or encourage any inquiry, proposal or offer regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal (an “Inquiry”), (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information regarding the Company to, any Person in connection with a Takeover Proposal or any Inquiry (other than to state that the Company is not permitted to have discussions), (iii) execute or enter into any letter of intent, agreement in principle or Contract with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (an “Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Takeover Proposal, (v) take any action to make the provisions of any Takeover Law or any restrictive provision of any applicable anti-takeover provision in Company Organizational Documents inapplicable to any transactions contemplated by any Takeover Proposal or (vi) authorize, commit to, agree, resolve to or publicly propose to do any of the foregoing. Without limiting the generality of the foregoing, the Company agrees that any violation of the restrictions on the Company set forth in this Section 5.3 by any Subsidiary of the Company or any representative of the Company shall be deemed a breach of this Section 5.3 by the Company. (i) Notwithstanding anything to the contrary set forth in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on June 28, 2023 (the “No-Shop Period Start Time”), the Company and its representatives shall have the right to (A) initiate or solicit, or knowingly facilitate or encourage, any Inquiry and (B) engage in or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or Inquiry, or, subject to the entry into, and in accordance with, an Acceptable Confidentiality Agreement, provide any access to its properties, books or records or any non-public information to any Person (and its representatives and prospective equity and debt financing sources) subject to the terms and conditions of such Acceptable Confidentiality Agreement applicable to such Person relating to the Company or any of its Subsidiaries in connection with the foregoing; provided that (x) the Company will provide to Parent any information relating to the Company or any of the Company’s Subsidiaries that was not previously provided or made available to Parent substantially concurrently with the time it is furnished to such Person (and its representatives and prospective equity and debt financing sources) and (y) the Company and its Subsidiaries will not pay, agree to pay or cause to be paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Takeover Proposals or Inquiry. (ii) On the No-Shop Period Start Time, the Company shall notify Parent in writing of (x) the number of parties with which the Company entered into an Acceptable Confidentiality Agreement and (y) the number of parties that submitted a Takeover Proposal after the date of this Agreement and prior to or on the No-Shop Period Start Time, which notice shall include a summary of all material terms of any pending Takeover Proposals that were made in writing by any Excluded Party. (iii) Immediately following the No-Shop Period Start Time, the Company shall, and shall cause its Subsidiaries and its representatives, to cease all solicitations, discussions and negotiations with and cease providing any access to its properties, books, records and non-public information to any Persons (other than Parent and its representatives and, subject to the immediately following sentence, any Excluded Party and its representatives) that may be ongoing with respect to a Takeover Proposal or Inquiry and request that each such Person (other than Parent and its representatives and any Excluded Party and its representatives) promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with any such Takeover Proposal or Inquiry. Notwithstanding the foregoing, the Company may continue to take any of the actions described in clauses (i) and (ii) of Section 5.3(a) above with respect to any Excluded Party (for so long as such Person is an Excluded Party) from and after the No-Shop Period Start Time until the earliest of the date on which (A) the Excluded Party has terminated or finally withdrawn the Qualified Proposal made prior to the No-Shop Period Start Time (provided that, for the avoidance of doubt, any amended, supplemented or modified Qualified Proposal submitted by such Excluded Party shall not be deemed to constitute, in and of itself, a termination or withdrawal of such previously submitted Qualified Proposal), (B) the Person submitting the relevant Qualified Proposal ceases to be an Excluded Party because the Special Committee, after consultation with outside legal counsel and its financial advisors, determines that such Qualified Proposal no longer is or would no longer be reasonably expected to lead to a Superior Proposal and (C) the Acceptance Time occurs. (b) Notwithstanding anything to the contrary contained in Section 5.3(a) or elsewhere in this Agreement, at any time following the No-Shop Period Start Time and prior to the Acceptance Time, if the Company, directly or indirectly through one or more of its representatives, receives a written unsolicited and bona fide Takeover Proposal that did not result from a breach of this Section 5.3, the Company and its representatives may contact the Person or group of Persons making such Takeover Proposal to clarify (but not negotiate) the terms and conditions thereof so as to determine whether such Takeover Proposal constitutes, or would reasonable be expect to result in, a Superior Proposal, and may (i) provide information to such Person or group of Persons (including their respective representatives and prospective equity and debt financing sources) if the Company receives from such Person or group of Persons (or has received from such Person or group of Persons) an executed Acceptable Confidentiality Agreement; provided, that the Company shall make available to Parent and Merger Sub any non-public information concerning the Company or its Subsidiaries that is provided to any such Person or group of Persons which was not previously made available to Parent or Merger Sub substantially concurrently, and (ii) engage or participate in any discussions or negotiations with such Person or group of Persons, if prior to taking any action described in clause (i) or (ii) above, (A) either the Company Board of the Special Committee determines in good faith after consultation with outside legal and financial advisors that such Takeover Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal and (B) either the Company Board or the Special Committee determines in good faith after consultation with outside legal and financial advisors that failure to take such action would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law. It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.3(b), including any public announcement that either the Company Board or the Special Committee has made any determination required under this Section 5.3(b) to take or engage in any such actions (provided that the Company Board or the Special Committee expressly publicly reaffirms the Company Board Recommendation in connection with such disclosure), shall not constitute an Adverse Recommendation Change or otherwise constitute a basis for Parent to terminate this Agreement pursuant to Section 7.3. (c) Except as set forth in this Section 5.3(c) or in Section 5.3(d), neither the Company Board nor any committee thereof (including the Special Committee) shall (i) withdraw, withhold, qualify, modify or amend, or agree to or publicly propose to withdraw, withhold, qualify, modify or amend, the Company Board Recommendation in any manner adverse to Parent, (ii) approve, recommend, or declare advisable or publicly propose to approve, recommend, or declare advisable, a Takeover Proposal or (iii) fail to include the Company Board Recommendation in the Schedule 14d-9 and Schedule 13e-3 (any action described in clauses (i),(ii) or (iii) being referred to as an “Adverse Recommendation Change”); provided, that, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Acceptance Time, if the Company receives, directly or indirectly through one or more of its representatives, either (A) after the date hereof and prior to or on the No-Shop Period Start Time from an Excluded Party, a Takeover Proposal or (B) after the No-Shop Period Start Time, an unsolicited, written, bona fide Takeover Proposal that did not result from a breach of this Section 5.3, either the Company Board or the Special Committee may make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.4(a) in order to enter into an Acquisition Agreement providing for such Superior Proposal, but only if: (i) neither the Company nor any of its Subsidiaries has materially breached any of the provisions of this Section 5.3; (ii) either the Company Board or the Special Committee has determined in good faith, after consultation with outside legal and financial advisors, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be; (iii) the Company shall have first provided at least three (3) Business Days’ prior written notice (the “Notice Period”) to Parent that the Company is prepared to make an Adverse Recommendation Change or terminate this Agreement to enter into an Acquisition Agreement with respect to a Superior Proposal, which notice shall include a copy of the written definitive agreements (including all exhibits and schedules and all financing commitments and other ancillary agreements) providing for the transaction that constitutes such Superior Proposal; (iv) during the Notice Period, the Company and its representatives have negotiated with Parent in good faith (if requested by Xxxxxx) to enable Parent to propose in writing such adjustments in the terms and conditions of the documents related to the transactions hereunder (including the Note Purchase Agreement and the Contribution and Exchange Agreement) (collectively, the “Transaction Documents”) so that such Superior Proposal ceases to constitute a Superior Proposal; and (v) following the end of the Notice Period (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to Parent and a new two Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, either the Company Board or the Special Committee has determined in good faith that, after consultation with its financial advisor, such Superior Proposal continues to constitute a Superior Proposal. (d) Notwithstanding anything to the contrary in this Agreement, either the Company Board or the Special Committee may, at any time before the Acceptance Time, make an Adverse Recommendation Change in response to an Intervening Event, but only if: (i) the Company Board or the Special Committee has determined in good faith (and, in the case of the Company Board, upon the recommendation of the Special Committee), after consultation with its outside legal counsel, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be; (ii) the Company shall have first provided prior written notice to Parent for at least the duration of the Notice Period that the Company is prepared to make an Adverse Recommendation Change in response to such Intervening Event, which notice shall specify in reasonable detail the Intervening Event that renders an Adverse Recommendation Change necessary; (iii) during the Notice Period, the Company and its representatives have negotiated with Parent in good faith (if requested by Parent) to enable Parent to propose in writing such adjustments in the terms and conditions of the Transaction Documents so that the failure to make such Adverse Recommendation Change would no longer be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law; and (iv) following the end of the Notice Period (it being understood and agreed that any material change to the conditions constituting such Intervening Event shall require an additional notice to Parent and a new two Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, the Company Board or the Special Committee has determined that, after consultation with its outside legal counsel, the failure to make such Adverse Recommendation Change continues to be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law. (e) Nothing contained in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company, the Company Board, the Special Committee or any other committee or subcommittee of the Company Board from (i) complying with Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company that the Company Board (or any duly authorized committee thereof, including the Special Committee acting in good faith after consultation with its outside legal counsel is required by its fiduciary duties under applicable Law. Any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be an Adverse Recommendation Change unless in such disclosure the Company Board or the Special Committee expressly reaffirms the Company Board Recommendation. For the avoidance of doubt, in no event shall the issuance of a “stop, look and listen” statement (or other similar statement expressly permitted by this Section 5.3(c)), taken by itself, be deemed to be an Adverse Recommendation Change.
Appears in 7 contracts
Samples: Merger Agreement (Sagrera Ricardo A.), Merger Agreement (Steinberg Michael), Merger Agreement (RiverRoad Capital Partners, LLC)
Go-Shop; Acquisition Proposals. (a) Except as permitted by Subject to the other provisions of this Section 5.3Agreement, from and after during the period commencing on the date hereof until the Acceptance Time or, if earlier, the termination of this Agreement in accordance with Article VIIand ending at 11:59 p.m. California time on the 40th day following the date of this Agreement (the “Go-Shop Period”), the Acquired Corporations and their respective Representatives shall be permitted (and may resolve or publicly propose) to, directly or indirectly: (i) solicit, initiate, encourage, assist, induce or facilitate the submission, announcement or making of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) subject to Section 4.3(e), furnish or otherwise provide access to any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry, but only if such Person has executed and delivered to the Company shall notan Acceptable Confidentiality Agreement; or (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry.
(b) Immediately upon the expiration of the Go-Shop Period: (i) the Company shall, and shall cause the other Acquired Corporations and each director and executive officer of its Subsidiaries not the Company to, and shall use its reasonable best efforts to instruct and cause the other Representatives of the Acquired Corporations to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person (other than Persons that are then Excluded Parties) relating to any Acquisition Proposal or Acquisition Inquiry; and (ii) the Company shall request, and shall thereafter use reasonable efforts to cause, each Person (other than a Person that is then an Excluded Party) that has previously executed a confidentiality or similar agreement in connection with such Person’s consideration of an Acquisition Proposal or investment in any Acquired Corporation to return to the Company or destroy any non-public information previously furnished to such Person or to any of such Person’s Representatives by or on behalf of any of the Acquired Corporations.
(c) Within 48 hours after the expiration of the Go-Shop Period: (i) the Company shall deliver to Parent a written notice setting forth: (A) the identity of each Excluded Party and each other Person that to the Knowledge of the Company has (or is expected to have) a material equity interest in, or is expected to participate in the Acquisition Transaction proposed by, such Excluded Party; and (B) the material terms and conditions of the pending Acquisition Proposal made by such Excluded Party (it being understood that price per share shall be considered a material term of any such pending Acquisition Proposal); and (ii) the Company shall deliver to Parent copies of all proposed definitive documents received by the Company or any of its representatives Representatives from any such Excluded Party or its Representatives relating to any Acquisition Proposal.
(d) Immediately upon the expiration of the Go-Shop Period, except as provided in Section 4.3(a), the Company shall not (and shall not resolve or publicly propose to), directly or indirectly indirectly, and shall cause the Acquired Corporations and the directors and executive officers of the Company not to (and not to resolve or publicly propose to), directly or indirectly, and shall use its reasonable best efforts to ensure that the other Representatives of any of the Acquired Corporations do not (and do not resolve or publicly propose to) directly or indirectly: (i) solicit, initiate initiate, encourage, assist, induce or knowingly facilitate the submission, announcement or encourage any inquiry, proposal or offer regarding, or the making of any proposal Acquisition Proposal or offer Acquisition Inquiry by any Person (other than a Person that constitutesis then an Excluded Party), or take any action that could reasonably be expected to lead toa Person (other than a Person that is then an Excluded Party) to disclose, a Takeover announce, commence, submit or otherwise make an Acquisition Proposal (an “or Acquisition Inquiry”), ; (ii) enter into, continue furnish or otherwise participate provide access to any information regarding any of the Acquired Corporations to any Person (other than a Person that is then an Excluded Party) in any connection with or in response to an Acquisition Proposal or Acquisition Inquiry; or (iii) engage in discussions or negotiations withwith any Person (other than a Person that is then an Excluded Party) with respect to any Acquisition Proposal or Acquisition Inquiry; provided, or however, that, subject to Section 4.3(e) and the other provisions of this Agreement, prior to the adoption of this Agreement by the Requisite Stockholder Approval, the Company may, without being deemed to violate this Section 4.3(d), furnish any non-public information regarding the Company Acquired Corporations to, and enter into discussions or negotiations with, any Person in connection with a Takeover response to an unsolicited, bona fide, written Acquisition Proposal or any Inquiry (other than that is submitted to state that the Company is by such Person (and not permitted to have discussionswithdrawn), but only if: (iiiA) execute such Acquisition Proposal did not result from a breach in any material respect of this Agreement; (B) the Company Board, acting upon the recommendation of the Special Committee, reasonably determines in good faith, after having taken into account the advice of an independent financial advisor of nationally recognized reputation and the advice of the Company’s outside legal counsel, that such Acquisition Proposal constitutes or enter is reasonably likely to result in a Superior Offer; and (C) prior to furnishing any such non-public information to, or entering into any letter of intentdiscussions or negotiations with, agreement in principle or Contract with respect to a Takeover Proposal (other than such Person, the Company receives from such Person an executed Acceptable Confidentiality Agreement) (an “Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Takeover Proposal, (v) take any action to make the provisions of any Takeover Law or any restrictive provision of any applicable anti-takeover provision in Company Organizational Documents inapplicable to any transactions contemplated by any Takeover Proposal or (vi) authorize, commit to, agree, resolve to or publicly propose to do any of the foregoing. Without limiting the generality of the foregoing, the Company agrees that any violation of the restrictions on the Company set forth in this Section 5.3 by any Subsidiary of the Company or any representative of the Company shall be deemed a breach of this Section 5.3 by the Company.
(ie) Notwithstanding anything Prior to the contrary set forth in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on June 28, 2023 (the “No-Shop Period Start Time”), the Company and its representatives shall have the right to (A) initiate or solicit, or knowingly facilitate or encourage, any Inquiry and (B) engage in furnishing or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or Inquiry, or, subject to permitting the entry into, and in accordance with, an Acceptable Confidentiality Agreement, provide any access to its properties, books or records or transmittal of any non-public information to any Excluded Party or other Person pursuant to Section 4.3(a) or the proviso to Section 4.3(d), the Company shall (as a condition to furnishing or otherwise permitting the transmittal of such non-public information to such Person) furnish such non-public information to Parent (to the extent such non-public information has not been previously furnished or Made Available by the Company to Parent).
(f) If the Company, any other Acquired Corporation or any Representative of any Acquired Corporation receives (from an Excluded Party or from any other Person) an Acquisition Proposal or Acquisition Inquiry or any request for non-public information at any time following the expiration of the Go-Shop Period, then the Company shall promptly (and its representatives in no event later than 24 hours after receipt of such Acquisition Proposal, Acquisition Inquiry or request) advise Parent in writing of such Acquisition Proposal, Acquisition Inquiry or request and prospective equity and debt financing sources) subject to the material terms and conditions thereof (excluding the identity of the Person making or submitting such Acceptable Confidentiality Agreement applicable to such Person relating to Acquisition Proposal, Acquisition Inquiry or request). Following the expiration of the Go-Shop Period: (i) the Company shall promptly (and in no event later than 24 hours after receipt) provide Parent with redacted copies of all proposed definitive documents received by the Company or any of its Subsidiaries in connection with the foregoing; provided that (x) the Company will provide to Parent any information relating to the Company or any of the Company’s Subsidiaries that was not previously provided or made available to Parent substantially concurrently with the time it is furnished to such Person (and its representatives and prospective equity and debt financing sources) and (y) the Company and its Subsidiaries will not pay, agree to pay or cause to be paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Takeover Proposals or Inquiry.
(ii) On the No-Shop Period Start Time, the Company shall notify Parent in writing of (x) the number of parties with which the Company entered into an Acceptable Confidentiality Agreement and (y) the number of parties that submitted a Takeover Proposal after the date of this Agreement and prior to or on the No-Shop Period Start Time, which notice shall include a summary of all material terms of any pending Takeover Proposals that were made in writing by any Excluded Party.
(iii) Immediately following the No-Shop Period Start Time, the Company shall, and shall cause its Subsidiaries and its representatives, to cease all solicitations, discussions and negotiations with and cease providing any access to its properties, books, records and non-public information to any Persons (other than Parent and its representatives and, subject to the immediately following sentence, any Excluded Party and its representatives) that may be ongoing with respect to a Takeover Proposal or Inquiry and request that each such Person (other than Parent and its representatives and any Excluded Party and its representatives) promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with any such Takeover Proposal or Inquiry. Notwithstanding the foregoing, the Company may continue to take any of the actions described in clauses (i) and (ii) of Section 5.3(a) above with respect to any Excluded Party (for so long as such Person is an Excluded Party) Representatives from and after the No-Shop Period Start Time until the earliest of the date on which (A) the Excluded Party has terminated or finally withdrawn the Qualified Proposal made prior to the No-Shop Period Start Time (provided that, for the avoidance of doubt, any amended, supplemented or modified Qualified Proposal submitted by such Excluded Party shall not be deemed to constitute, in and of itself, a termination or withdrawal of such previously submitted Qualified Proposal), (B) the Person submitting the relevant Qualified Proposal ceases to be an Excluded Party because the Special Committee, after consultation with outside legal counsel and its financial advisors, determines that such Qualified Proposal no longer is or would no longer be reasonably expected to lead to a Superior Proposal and (C) the Acceptance Time occurs.
(b) Notwithstanding anything to the contrary contained in Section 5.3(a) or elsewhere in this Agreement, at any time following the No-Shop Period Start Time and prior to the Acceptance Time, if the Company, directly or indirectly through one or more of its representatives, receives a written unsolicited and bona fide Takeover Proposal that did not result from a breach of this Section 5.3, the Company and its representatives may contact the Person or group of Persons making such Takeover Proposal to clarify (but not negotiate) the terms and conditions thereof so as to determine whether such Takeover Proposal constitutes, or would reasonable be expect to result in, a Superior Proposal, and may (i) provide information to such Person or group of Persons (including their respective representatives and prospective equity and debt financing sources) if the Company receives from such Person or group of Persons (or has received from such Person or group of Persons) an executed Acceptable Confidentiality Agreement; provided, that the Company shall make available to Parent and Merger Sub any non-public information concerning the Company or its Subsidiaries that is provided to any such Person or group of Persons which was not previously made available its Representatives relating to Parent or Merger Sub substantially concurrently, and (ii) engage or participate in any discussions or negotiations with such Person or group of Persons, if prior to taking any action described in clause (i) or (ii) above, (A) either the Company Board of the Special Committee determines in good faith after consultation with outside legal and financial advisors that such Takeover Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal and (B) either the Company Board or the Special Committee determines in good faith after consultation with outside legal and financial advisors that failure to take such action would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law. It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.3(b), including any public announcement that either the Company Board or the Special Committee has made any determination required under this Section 5.3(b) to take or engage in any such actions (provided that the Company Board or the Special Committee expressly publicly reaffirms the Company Board Recommendation in connection with such disclosure), shall not constitute an Adverse Recommendation Change or otherwise constitute a basis for Parent to terminate this Agreement pursuant to Section 7.3.
(c) Except as set forth in this Section 5.3(c) or in Section 5.3(d), neither the Company Board nor any committee thereof (including the Special Committee) shall (i) withdraw, withhold, qualify, modify or amend, or agree to or publicly propose to withdraw, withhold, qualify, modify or amend, the Company Board Recommendation in any manner adverse to Parent, (ii) approve, recommend, or declare advisable or publicly propose to approve, recommend, or declare advisable, a Takeover Proposal or (iii) fail to include the Company Board Recommendation in the Schedule 14d-9 and Schedule 13e-3 (any action described in clauses (i),(ii) or (iii) being referred to as an “Adverse Recommendation Change”); provided, that, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Acceptance Time, if the Company receives, directly or indirectly through one or more of its representatives, either (A) after the date hereof and prior to or on the No-Shop Period Start Time from an Excluded Party, a Takeover Proposal or (B) after the No-Shop Period Start Time, an unsolicited, written, bona fide Takeover Proposal that did not result from a breach of this Section 5.3, either the Company Board or the Special Committee may make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.4(a) in order to enter into an Acquisition Agreement providing for such Superior Proposal, but only if:
(i) neither the Company nor any of its Subsidiaries has materially breached any of the provisions of this Section 5.3;
(ii) either the Company Board or the Special Committee has determined in good faith, after consultation with outside legal and financial advisors, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be;
(iii) the Company shall have first provided at least three (3) Business Days’ prior written notice (the “Notice Period”) to Parent that the Company is prepared to make an Adverse Recommendation Change or terminate this Agreement to enter into an Acquisition Agreement with respect to a Superior Proposal, which notice shall include a copy of the written definitive agreements (including all exhibits and schedules and all financing commitments and other ancillary agreements) providing for the transaction that constitutes such Superior Proposal;
(iv) during the Notice Period, the Company and its representatives have negotiated with Parent in good faith (if requested by Xxxxxx) to enable Parent to propose in writing such adjustments in the terms and conditions of the documents related to the transactions hereunder (including the Note Purchase Agreement and the Contribution and Exchange Agreement) (collectively, the “Transaction Documents”) so that such Superior Proposal ceases to constitute a Superior Proposal; and
(v) following the end of the Notice Period (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to Parent and a new two Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, either the Company Board or the Special Committee has determined in good faith that, after consultation with its financial advisor, such Superior Proposal continues to constitute a Superior Proposal.
(d) Notwithstanding anything to the contrary in this Agreement, either the Company Board or the Special Committee may, at any time before the Acceptance Time, make an Adverse Recommendation Change in response to an Intervening Event, but only if:
(i) the Company Board or the Special Committee has determined in good faith (and, in the case of the Company Board, upon the recommendation of the Special Committee), after consultation with its outside legal counsel, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be;
(ii) the Company shall have first provided prior written notice keep Parent fully informed with respect to the status of any such Acquisition Proposal, Acquisition Inquiry or request and any modification or proposed modification thereto, and shall promptly (and in no event later than 24 hours after obtaining knowledge thereof) notify Parent for of any material change or development with respect to such Acquisition Proposal.
(g) The Company: (i) agrees that it will not, and shall ensure that each other Acquired Corporation will not, at least any time (whether during or after the duration Go-Shop Period), release or permit the release of any Person from, or amend, waive or permit the amendment or waiver of any provision of, any “standstill” or similar agreement or provision to which any of the Notice Period Acquired Corporations is or becomes a party or under which any of the Acquired Corporations has or acquires any rights; and (ii) will use its best efforts to enforce or cause to be enforced each such agreement or provision at the request of Parent; provided, however, that the Company is prepared may waive its rights under any such “standstill” or similar agreement or provision to the extent necessary to enable the parties subject thereto to make an Adverse Recommendation Change in response Acquisition Proposals to such Intervening Event, which notice shall specify in reasonable detail the Intervening Event that renders an Adverse Recommendation Change necessary;
(iii) Company during the Notice Go Shop Period, the Company and its representatives have negotiated with Parent in good faith (if requested by Parent) to enable Parent to propose in writing such adjustments in the terms and conditions of the Transaction Documents so that the failure to make such Adverse Recommendation Change would no longer be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law; and
(iv) following the end of the Notice Period (it being understood and agreed that any material change to the conditions constituting such Intervening Event shall require an additional notice to Parent and a new two Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, the Company Board or the Special Committee has determined that, after consultation with its outside legal counsel, the failure to make such Adverse Recommendation Change continues to be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law.
(e) Nothing contained in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company, the Company Board, the Special Committee or any other committee or subcommittee of the Company Board from (i) complying with Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company that the Company Board (or any duly authorized committee thereof, including the Special Committee acting in good faith after consultation with its outside legal counsel is required by its fiduciary duties under applicable Law. Any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be an Adverse Recommendation Change unless in such disclosure the Company Board or the Special Committee expressly reaffirms the Company Board Recommendation. For the avoidance of doubt, in no event shall the issuance of a “stop, look and listen” statement (or other similar statement expressly permitted by this Section 5.3(c)), taken by itself, be deemed to be an Adverse Recommendation Change.
Appears in 2 contracts
Samples: Merger Agreement (Ebay Inc), Merger Agreement (Gsi Commerce Inc)
Go-Shop; Acquisition Proposals. (a) Except as permitted by this Section 5.3, from and after the date hereof until the Acceptance Time or, if earlier, the termination of this Agreement in accordance with Article VII, the Company shall not, and shall cause each of its Subsidiaries not to, and shall use its reasonable best efforts to cause its representatives not to, directly or indirectly (i) solicit, initiate or knowingly facilitate or encourage any inquiry, proposal or offer regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal (an “Inquiry”), (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information regarding the Company to, any Person in connection with a Takeover Proposal or any Inquiry (other than to state that the Company is not permitted to have discussions), (iii) execute or enter into any letter of intent, agreement in principle or Contract with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (an “Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Takeover Proposal, (v) take any action to make the provisions of any Takeover Law or any restrictive provision of any applicable anti-takeover provision in Company Organizational Documents inapplicable to any transactions contemplated by any Takeover Proposal or (vi) authorize, commit to, agree, resolve to or publicly propose to do any of the foregoing. Without limiting the generality of the foregoing, the Company agrees that any violation of the restrictions on the Company set forth in this Section 5.3 by any Subsidiary of the Company or any representative of the Company shall be deemed a breach of this Section 5.3 by the Company.
(i) Notwithstanding anything to the contrary set forth in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on June 28, 2023 (the “No-Shop Period Start Time”), the Company and its representatives shall have the right to (A) initiate or solicit, or knowingly facilitate or encourage, any Inquiry and (B) engage in or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or Inquiry, or, subject to the entry into, and in accordance with, an Acceptable Confidentiality Agreement, provide any access to its properties, books or records or any non-public information to any Person (and its representatives and prospective equity and debt financing sources) subject to the terms and conditions of such Acceptable Confidentiality Agreement applicable to such Person relating to the Company or any of its Subsidiaries in connection with the foregoing; provided that (x) the Company will provide to Parent any information relating to the Company or any of the Company’s Subsidiaries that was not previously provided or made available to Parent substantially concurrently with the time it is furnished to such Person (and its representatives and prospective equity and debt financing sources) and (y) the Company and its Subsidiaries will not pay, agree to pay or cause to be paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Takeover Proposals or Inquiry.
(ii) On the No-Shop Period Start Time, the Company shall notify Parent in writing of (x) the number of parties with which the Company entered into an Acceptable Confidentiality Agreement and (y) the number of parties that submitted a Takeover Proposal after the date of this Agreement and prior to or on the No-Shop Period Start Time, which notice shall include a summary of all material terms of any pending Takeover Proposals that were made in writing by any Excluded Party.
(iii) Immediately following the No-Shop Period Start Time, the Company shall, and shall cause its Subsidiaries and its representatives, to cease all solicitations, discussions and negotiations with and cease providing any access to its properties, books, records and non-public information to any Persons (other than Parent and its representatives and, subject to the immediately following sentence, any Excluded Party and its representatives) that may be ongoing with respect to a Takeover Proposal or Inquiry and request that each such Person (other than Parent and its representatives and any Excluded Party and its representatives) promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with any such Takeover Proposal or Inquiry. Notwithstanding the foregoing, the Company may continue to take any of the actions described in clauses (i) and (ii) of Section 5.3(a) above with respect to any Excluded Party (for so long as such Person is an Excluded Party) from and after the No-Shop Period Start Time until the earliest of the date on which (A) the Excluded Party has terminated or finally withdrawn the Qualified Proposal made prior to the No-Shop Period Start Time (provided that, for the avoidance of doubt, any amended, supplemented or modified Qualified Proposal submitted by such Excluded Party shall not be deemed to constitute, in and of itself, a termination or withdrawal of such previously submitted Qualified Proposal), (B) the Person submitting the relevant Qualified Proposal ceases to be an Excluded Party because the Special Committee, after consultation with outside legal counsel and its financial advisors, determines that such Qualified Proposal no longer is or would no longer be reasonably expected to lead to a Superior Proposal and (C) the Acceptance Time occurs.
(b) Notwithstanding anything to the contrary contained in Section 5.3(a) or elsewhere in this Agreement, at any time following the No-Shop Period Start Time and prior to the Acceptance Time, if the Company, directly or indirectly through one or more of its representatives, receives a written unsolicited and bona fide Takeover Proposal that did not result from a breach of this Section 5.3, the Company and its representatives may contact the Person or group of Persons making such Takeover Proposal to clarify (but not negotiate) the terms and conditions thereof so as to determine whether such Takeover Proposal constitutes, or would reasonable be expect to result in, a Superior Proposal, and may (i) provide information to such Person or group of Persons (including their respective representatives and prospective equity and debt financing sources) if the Company receives from such Person or group of Persons (or has received from such Person or group of Persons) an executed Acceptable Confidentiality Agreement; provided, that the Company shall make available to Parent and Merger Sub any non-public information concerning the Company or its Subsidiaries that is provided to any such Person or group of Persons which was not previously made available to Parent or Merger Sub substantially concurrently, and (ii) engage or participate in any discussions or negotiations with such Person or group of Persons, if prior to taking any action described in clause (i) or (ii) above, (A) either the Company Board of the Special Committee determines in good faith after consultation with outside legal and financial advisors that such Takeover Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal and (B) either the Company Board or the Special Committee determines in good faith after consultation with outside legal and financial advisors that failure to take such action would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law. It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.3(b), including any public announcement that either the Company Board or the Special Committee has made any determination required under this Section 5.3(b) to take or engage in any such actions (provided that the Company Board or the Special Committee expressly publicly reaffirms the Company Board Recommendation in connection with such disclosure), shall not constitute an Adverse Recommendation Change or otherwise constitute a basis for Parent to terminate this Agreement pursuant to Section 7.3.
(c) Except as set forth in this Section 5.3(c) or in Section 5.3(d), neither the Company Board nor any committee thereof (including the Special Committee) shall (i) withdraw, withhold, qualify, modify or amend, or agree to or publicly propose to withdraw, withhold, qualify, modify or amend, the Company Board Recommendation in any manner adverse to Parent, (ii) approve, recommend, or declare advisable or publicly propose to approve, recommend, or declare advisable, a Takeover Proposal or (iii) fail to include the Company Board Recommendation in the Schedule 14d-9 and Schedule 13e-3 (any action described in clauses (i),(ii) or (iii) being referred to as an “Adverse Recommendation Change”); provided, that, notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Acceptance Time, if the Company receives, directly or indirectly through one or more of its representatives, either (A) after the date hereof and prior to or on the No-Shop Period Start Time from an Excluded Party, a Takeover Proposal or (B) after the No-Shop Period Start Time, an unsolicited, written, bona fide Takeover Proposal that did not result from a breach of this Section 5.3, either the Company Board or the Special Committee may make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.4(a) in order to enter into an Acquisition Agreement providing for such Superior Proposal, but only if:
(i) neither the Company nor any of its Subsidiaries has materially breached any of the provisions of this Section 5.3;
(ii) either the Company Board or the Special Committee has determined in good faith, after consultation with outside legal and financial advisors, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be;
(iii) the Company shall have first provided at least three (3) Business Days’ prior written notice (the “Notice Period”) to Parent that the Company is prepared to make an Adverse Recommendation Change or terminate this Agreement to enter into an Acquisition Agreement with respect to a Superior Proposal, which notice shall include a copy of the written definitive agreements (including all exhibits and schedules and all financing commitments and other ancillary agreements) providing for the transaction that constitutes such Superior Proposal;
(iv) during the Notice Period, the Company and its representatives have negotiated with Parent in good faith (if requested by XxxxxxPxxxxx) to enable Parent to propose in writing such adjustments in the terms and conditions of the documents related to the transactions hereunder (including the Note Purchase Agreement and the Contribution and Exchange Agreement) (collectively, the “Transaction Documents”) so that such Superior Proposal ceases to constitute a Superior Proposal; and
(v) following the end of the Notice Period (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to Parent and a new two Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, either the Company Board or the Special Committee has determined in good faith that, after consultation with its financial advisor, such Superior Proposal continues to constitute a Superior Proposal.
(d) Notwithstanding anything to the contrary in this Agreement, either the Company Board or the Special Committee may, at any time before the Acceptance Time, make an Adverse Recommendation Change in response to an Intervening Event, but only if:
(i) the Company Board or the Special Committee has determined in good faith (and, in the case of the Company Board, upon the recommendation of the Special Committee), after consultation with its outside legal counsel, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be;
(ii) the Company shall have first provided prior written notice to Parent for at least the duration of the Notice Period that the Company is prepared to make an Adverse Recommendation Change in response to such Intervening Event, which notice shall specify in reasonable detail the Intervening Event that renders an Adverse Recommendation Change necessary;
(iii) during the Notice Period, the Company and its representatives have negotiated with Parent in good faith (if requested by Parent) to enable Parent to propose in writing such adjustments in the terms and conditions of the Transaction Documents so that the failure to make such Adverse Recommendation Change would no longer be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law; and
(iv) following the end of the Notice Period (it being understood and agreed that any material change to the conditions constituting such Intervening Event shall require an additional notice to Parent and a new two Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, the Company Board or the Special Committee has determined that, after consultation with its outside legal counsel, the failure to make such Adverse Recommendation Change continues to be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law.
(e) Nothing contained in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company, the Company Board, the Special Committee or any other committee or subcommittee of the Company Board from (i) complying with Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company that the Company Board (or any duly authorized committee thereof, including the Special Committee acting in good faith after consultation with its outside legal counsel is required by its fiduciary duties under applicable Law. Any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be an Adverse Recommendation Change unless in such disclosure the Company Board or the Special Committee expressly reaffirms the Company Board Recommendation. For the avoidance of doubt, in no event shall the issuance of a “stop, look and listen” statement (or other similar statement expressly permitted by this Section 5.3(c)), taken by itself, be deemed to be an Adverse Recommendation Change.
Appears in 1 contract
Go-Shop; Acquisition Proposals. (a) Except as permitted by this Section 5.3, from and after the date hereof until the Acceptance Time or, if earlier, the termination of this Agreement in accordance with Article VII, the Company shall not, and shall cause each of its Subsidiaries not to, and shall use its reasonable best efforts to cause its representatives not to, directly or indirectly (i) solicit, initiate or knowingly facilitate or encourage any inquiry, proposal or offer regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal (an “Inquiry”), (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information regarding the Company to, any Person in connection with a Takeover Proposal or any Inquiry (other than to state that the Company is not permitted to have discussions), (iii) execute or enter into any letter of intent, agreement in principle or Contract with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (an “Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Takeover Proposal, (v) take any action to make the provisions of any Takeover Law or any restrictive provision of any applicable anti-takeover provision in Company Organizational Documents inapplicable to any transactions contemplated by any Takeover Proposal or (vi) authorize, commit to, agree, resolve to or publicly propose to do any of the foregoing. Without limiting the generality of the foregoing, the Company agrees that any violation of the restrictions on the Company set forth in this Section 5.3 by any Subsidiary of the Company or any representative of the Company shall be deemed a breach of this Section 5.3 by the Company.
(i) Notwithstanding anything to the contrary set forth contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City Pacific time) on June 28November 20, 2023 2024 (the “No-Shop Period Start TimeDate”), the Company and its representatives Representatives shall have the right to to: (Ai) initiate or initiate, solicit, or knowingly encourage or knowingly facilitate any proposal, inquiry, or encourageoffer that would constitute, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) provide any non-public information or afford access to the business, personnel, properties, assets, books or records of the Company or any of the Company Subsidiaries in each case, to any Person (and/or its Representatives, including potential financing sources) pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly provide to Parent and Merger Sub, or promptly (and in any event within twenty-four (24) hours) provide to Parent and its Representatives access to, any Inquiry material non-public information or data that is provided to any Person given such access that was not previously made available to Parent, Merger Sub or their Representatives and shall not provide to any such Person any non-public information or data of or relating to Parent, Merger Sub or any of their respective Affiliates or Representatives, and (Biii) engage in in, enter into, continue or otherwise participate in, any discussions or negotiations with any Persons (and their respective Representatives, including potential financing sources) with respect to any proposal, inquiry, or offer that would constitute, or would reasonably be expected to lead to, an Acquisition Proposal.
(b) From the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VII and the consummation of the Closing, the Company will not, will cause the Company Subsidiaries and its directors and officers not to, and will not authorize, direct or permit its Representatives to, directly or indirectly: (i) initiate, solicit, or knowingly encourage or knowingly facilitate any proposal, inquiry, or offer that would constitute, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) engage in, enter into, continue or otherwise participate in any discussions or negotiations regarding a Takeover Proposal with respect to any proposal, inquiry, or Inquiryoffer that would constitute, or, subject or would reasonably be expected to the entry into, and in accordance withlead to, an Acceptable Confidentiality AgreementAcquisition Proposal, (iii) provide any access to its properties, books or records or any non-public information or afford access to the business, personnel, properties, assets, books or records of the Company or the Company Subsidiaries, in each case, to any Person (and its representatives and prospective equity and debt financing sources) subject to the terms and conditions of such Acceptable Confidentiality Agreement applicable to such Person relating to the Company other than Parent, Merger Sub, or any designees of its Subsidiaries Parent or Merger Sub) in connection with or for the foregoing; provided purpose of knowingly encouraging or knowingly facilitating any proposal, inquiry, or offer that would constitute, or would reasonably be expected to lead to, an Acquisition Proposal, (xiv) the Company will provide to Parent any information relating to the Company or any of the Company’s Subsidiaries that was not previously provided or made available to Parent substantially concurrently with the time it is furnished to such Person (and its representatives and prospective equity and debt financing sources) and (y) the Company and its Subsidiaries will not pay, agree to pay or cause to be paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Takeover Proposals proposal, inquiry, or Inquiry.
offer that would constitute, or would reasonably be expected to lead to, an Acquisition Proposal, grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement, or (iiv) enter into any letter of intent, Contract, commitment, or agreement in principle with respect to any proposal, inquiry, or offer that would constitute, or would reasonably be expected to lead to, an Acquisition Proposal. On the No-Shop Period Start TimeDate, the Company shall notify Parent in writing of (x) the number of parties with which will, and will cause the Company entered into an Acceptable Confidentiality Subsidiaries to, and will instruct its Representatives to, immediately cease any direct or indirect solicitation, discussions or negotiations with any Person (other than Parent, Merger Sub, or any designees of Parent or Merger Sub) with respect to any Acquisition Proposal, and promptly, but in no event later than twenty-four (24) hours following the date of this Agreement will (I) request the return or destruction of all confidential information provided by or on behalf of the Company or the Company Subsidiaries to any such Person and (yII) terminate access to any physical or electronic data rooms relating to a possible Acquisition Proposal. Notwithstanding any other provision of this Agreement, the number Company and its Representatives may (A) contact a Person making an inquiry or proposal solely to the extent necessary to clarify or determine whether such inquiry or proposal constitutes an Acquisition Proposal and (B) inform a Person that has made or, to the Knowledge of parties that submitted a Takeover the Company, is considering making, following the date hereof, an Acquisition Proposal after of the provisions of this Section 5.3.
(c) Notwithstanding Section 5.3(b) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to or on the No-Shop Period Start Time, which notice shall include a summary of all material terms of any pending Takeover Proposals that were made in writing by any Excluded Party.
(iii) Immediately following the No-Shop Period Start Time, obtaining the Company shallRequisite Vote, and shall cause its Subsidiaries and its representatives, to cease all solicitations, discussions and negotiations with and cease providing any access to its properties, books, records and non-public information to any Persons (other than Parent and its representatives and, subject to the immediately following sentence, any Excluded Party and its representatives) that may be ongoing with respect to a Takeover Proposal or Inquiry and request that each such Person (other than Parent and its representatives and any Excluded Party and its representatives) promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with any such Takeover Proposal or Inquiry. Notwithstanding the foregoing, the Company may continue to take any of the actions described in clauses (i) and (ii) of Section 5.3(a) above with respect to any Excluded Party (for so long as such Person is an Excluded Party) from and after the No-Shop Period Start Time until the earliest of the date on which (A) the Excluded Party Company has terminated or finally withdrawn the Qualified Proposal made prior to the No-Shop Period Start Time (provided that, for the avoidance of doubt, any amended, supplemented or modified Qualified Proposal submitted by such Excluded Party shall not be deemed to constitute, in and of itself, a termination or withdrawal of such previously submitted Qualified Proposal), (B) the Person submitting the relevant Qualified Proposal ceases to be an Excluded Party because the Special Committee, after consultation with outside legal counsel and its financial advisors, determines that such Qualified Proposal no longer is or would no longer be reasonably expected to lead to a Superior Proposal and (C) the Acceptance Time occurs.
(b) Notwithstanding anything to the contrary contained in Section 5.3(a) or elsewhere in this Agreement, at any time following the No-Shop Period Start Time and prior to the Acceptance Time, if the Company, directly or indirectly through one or more of its representatives, receives received a written unsolicited and bona fide Takeover Acquisition Proposal that did not result from a breach of this Section 5.35.3 and (ii) the Company Board or a committee thereof determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or is reasonably likely to lead to or result in a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board under applicable Law, then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Acquisition Proposal and its representatives may contact Representatives and (B) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal; provided that (1) the Company will not, and will not authorize or knowingly permit its Representatives to, disclose such information to, or participate in such discussions or negotiations with, such Person unless the Company (x) has entered into a confidentiality agreement with such Person existing as of the date of this Agreement or (y) first enters into a customary confidentiality agreement with such Person following the date of this Agreement, in the case of each of clauses (x) and (y), with terms governing confidentiality that are no less restrictive in any material respect to the other Person than those contained in the Confidentiality Agreement and that does not prevent the Company from providing any information to Parent or Merger Sub in accordance with this Agreement or otherwise complying with its obligation under this Agreement (provided that any competitively sensitive information or data provided to any such Person pursuant to such confidentiality agreement who is, or whose Affiliates include, a competitor, supplier or customer of the Company or any of the Company Subsidiaries will be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data), except that such confidentiality agreement need not include explicit or implicit standstill provisions that would restrict the making of or amendment or modification to an Acquisition Proposal (an “Acceptable Confidentiality Agreement”), (2) the Company shall not terminate, waive, amend, release or modify any material provision of any such confidentiality agreement in a manner such that the confidentiality agreement does not comply with the requirements described earlier in this Section 5.3(c), and (3) the Company will substantially concurrently provide or make available to Parent any material non-public information concerning the Company or the Company Subsidiaries provided or made available to such other Person that was not previously provided or made available to Parent and Merger Sub.
(d) The Company will (i) promptly (and in any event within twenty-four (24) hours) notify Parent in writing of the receipt by the Company of any Acquisition Proposal or written indication by any Person that it is considering making an Acquisition Proposal, including the identity of the Person or group of Persons making such Takeover Acquisition Proposal; and (ii) (A) provide Parent promptly (and in any event within such twenty-four (24) hour period) with a copy of the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition Proposal, including, for the avoidance of doubt, the form and amount of consideration and proposed financing arrangements), including a copy of proposed transaction documents or other material documents relating to clarify such Acquisition Proposal, (but not negotiateB) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Acquisition Proposal (including any change in price or form of consideration or other material amendment thereto) on a prompt basis, and (C) upon the reasonable request of Parent, reasonably inform Parent of the status of such Acquisition Proposal, in each case, except to the extent that doing so would violate a confidentiality agreement existing as of the date of this Agreement.
(e) The Company Board and each committee thereof will not, subject to the terms and conditions thereof so as to determine whether such Takeover Proposal constitutesof this Agreement, or would reasonable be expect to result in, a Superior Proposal, and may (i) provide information to such Person cause or group of Persons (including their respective representatives and prospective equity and debt financing sources) if the Company receives from such Person or group of Persons (or has received from such Person or group of Persons) an executed Acceptable Confidentiality Agreement; provided, that the Company shall make available to Parent and Merger Sub any non-public information concerning permit the Company or its the Company Subsidiaries that is provided to approve or enter into any acquisition agreement, merger agreement, letter of intent or similar definitive agreement (other than a confidentiality agreement referred to and entered into in compliance with Section 5.3(a) or Section 5.3(c)) relating to any such Person or group of Persons which was not previously made available to Parent or Merger Sub substantially concurrently, and Acquisition Proposal (ii) engage or participate in any discussions or negotiations with such Person or group of Persons, if prior to taking any action described in clause (ian “Alternative Acquisition Agreement”) or (ii) above, (A) either the Company make a Change of Board of the Special Committee determines in good faith after consultation with outside legal and financial advisors that such Takeover Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal and (B) either the Company Board or the Special Committee determines in good faith after consultation with outside legal and financial advisors that failure to take such action would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law. It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.3(b), including any public announcement that either the Company Board or the Special Committee has made any determination required under this Section 5.3(b) to take or engage in any such actions (provided that the Company Board or the Special Committee expressly publicly reaffirms the Company Board Recommendation in connection with such disclosure), shall not constitute an Adverse Recommendation Change or otherwise constitute a basis for Parent to terminate this Agreement pursuant to Section 7.3Recommendation.
(cf) Except as set forth in this Notwithstanding Section 5.3(c5.3(e) or in Section 5.3(d), neither the Company Board nor any committee thereof (including the Special Committee) shall (i) withdraw, withhold, qualify, modify or amend, or agree to or publicly propose to withdraw, withhold, qualify, modify or amend, the Company Board Recommendation in any manner adverse to Parent, (ii) approve, recommend, or declare advisable or publicly propose to approve, recommend, or declare advisable, a Takeover Proposal or (iii) fail to include the Company Board Recommendation in the Schedule 14d-9 and Schedule 13e-3 (any action described in clauses (i),(ii) or (iii) being referred to as an “Adverse Recommendation Change”); provided, that, notwithstanding the foregoing or anything to the contrary set forth in other provision of this Agreement, prior to the Acceptance Time, if Company’s receipt of the Company receives, directly or indirectly through one or more of its representatives, either Requisite Vote:
(i) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if and only if (A) after the date hereof and prior to or on the No-Shop Period Start Time from Company receives an Excluded Party, a Takeover Proposal or (B) after the No-Shop Period Start Time, an unsolicited, written, bona fide Takeover Acquisition Proposal that did not result from a breach of this Section 5.3, either 5.3 and that the Company Board or the Special Committee may make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.4(a) in order to enter into an Acquisition Agreement providing for such Superior Proposal, but only if:
(i) neither the Company nor any of its Subsidiaries has materially breached any of the provisions of this Section 5.3;
(ii) either the Company Board or the Special Committee has determined a committee thereof determines in good faith, after consultation with outside legal counsel and financial advisors, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be;
constitutes a Superior Proposal; (iiiB) the Company shall have first provided at least three (3) Business Days’ prior written notice (the “Notice Period”) has notified Parent in writing that it intends to Parent that the Company is prepared to make an Adverse Recommendation Change or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior ProposalAgreement, which notice shall include a copy the information with respect to such Acquisition Proposal that is specified in Section 5.3(d) and any proposed Alternative Acquisition Agreement; and (C) no earlier than the end of the written definitive agreements Notice Period, after negotiating and causing its Representatives to negotiate during the Notice Period to amend the terms of this Agreement such that the Acquisition Proposal no longer continues to constitute a Superior Proposal (including all exhibits if such negotiation is requested in writing by Parent), the Company Board or any committee thereof determines in good faith, after consultation with outside legal counsel and schedules financial advisors, after taking into consideration the terms of any proposed amendment or modification to this Agreement, the Financing Commitments and all financing commitments the Guaranty that Parent has irrevocably committed to make during the Notice Period, that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal and other ancillary agreementsthat the failure to terminate this Agreement to enter into such Alternative Acquisition Agreement would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law;
(ii) providing for the transaction Company Board or a committee thereof may make a Change of Board Recommendation if and only if (A) the Company receives an Acquisition Proposal that did not result from a breach of this Section 5.3 and that the Company Board or a committee thereof determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, constitutes such a Superior Proposal, (B) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation, which notice shall include the information with respect to such Acquisition Proposal that is specified in Section 5.3(d) and any proposed Alternative Acquisition Agreement, and (C) no earlier than the end of the Notice Period, after negotiating and causing its Representatives to negotiate during the Notice Period to amend the terms of this Agreement such that the Acquisition Proposal no longer continues to constitute a Superior Proposal (if such negotiation is requested in writing by Parent), the Company Board or a committee thereof determines in good faith, after consultation with outside legal counsel and financial advisors, that the Acquisition Proposal that is the subject of the Determination Notice continues to constitute a Superior Proposal and that the failure to make a Change of Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, in each case, after taking into consideration any changes to this Agreement, the Financing Commitments and the Guaranty that Parent has irrevocably committed to make during the Notice Period;
(iii) other than in connection with an Acquisition Proposal, the Company Board or a committee thereof may make a Change of Board Recommendation in response to an Intervening Event if and only if (A) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation, which notice shall describe the Intervening Event in reasonable detail and the reason(s) therefor and (B) no earlier than the end of the Notice Period, after negotiating and causing its Representatives to negotiate during the Notice Period to amend the terms of this Agreement in such a manner that would obviate the need to effect a Change of Board Recommendation (if such negotiation is requested in writing by Parent), the Company Board or any committee thereof determines in good faith, after considering the terms of any proposed amendment or modification to this Agreement, the Financing Commitments and the Guaranty that Parent has irrevocably committed to make during the Notice Period, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; and
(iv) during the Notice Period, if requested by Parent, the Company and its representatives have negotiated with Parent will negotiate in good faith (if requested by Xxxxxxwith Parent regarding potential changes to this Agreement. The provisions of this Section 5.3(f) also apply to enable Parent to propose in writing such adjustments in the terms and conditions of the documents related any amendment to the transactions hereunder (including the Note Purchase Agreement and the Contribution and Exchange Agreement) (collectively, the “Transaction Documents”) so that such financial terms or any material amendment to any other terms of any applicable Superior Proposal ceases with respect to constitute Section 5.3(f)(i) or Section 5.3(f)(ii) and require a Superior Proposal; and
(v) following the end of the revised Determination Notice and a new Notice Period (it being understood pursuant to Section 5.3(f)(i)(C) or Section 5.3(f)(ii)(C), as the case may be, and agreed that any material change to the financial or other terms facts and conditions of such Superior Proposal shall circumstances relating to any Intervening Event with respect to Section 5.3(f)(iii) and require an additional notice to Parent a revised Determination Notice and a new two Business Day periodNotice Period pursuant to Section 5.3(f)(iii)(B), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing by Parent, either the Company Board or the Special Committee has determined in good faith that, after consultation with its financial advisor, such Superior Proposal continues to constitute a Superior Proposal.
(dg) Notwithstanding anything to the contrary Nothing contained in this Agreement, either the Company Board or the Special Committee may, at any time before the Acceptance Time, make an Adverse Recommendation Change in response to an Intervening Event, but only if:
Agreement prohibits (i) the Company Board or the Special Committee has determined in good faith a committee thereof from (and, in the case of the Company Board, upon the recommendation of the Special Committee), after consultation with its outside legal counsel, that failure to do so would be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law, as the case may be;
(iiA) the Company shall have first provided prior written notice to Parent for at least the duration of the Notice Period that the Company is prepared to make an Adverse Recommendation Change in response to such Intervening Event, which notice shall specify in reasonable detail the Intervening Event that renders an Adverse Recommendation Change necessary;
(iii) during the Notice Period, the Company taking and its representatives have negotiated with Parent in good faith (if requested by Parent) to enable Parent to propose in writing such adjustments in the terms and conditions of the Transaction Documents so that the failure to make such Adverse Recommendation Change would no longer be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law; and
(iv) following the end of the Notice Period (it being understood and agreed that any material change disclosing to the conditions constituting such Intervening Event shall require an additional notice to Parent and holders of Common Shares a new two Business Day period), and after considering such negotiations and any adjustments in the terms and conditions of the Transaction Documents that have been agreed to in writing position contemplated by Parent, the Company Board or the Special Committee has determined that, after consultation with its outside legal counsel, the failure to make such Adverse Recommendation Change continues to be inconsistent with the Company Board’s or the Special Committee’s fiduciary obligations under applicable Law.
(e) Nothing contained in this Section 5.3 or elsewhere in this Agreement shall prohibit the Company, the Company Board, the Special Committee or any other committee or subcommittee of the Company Board from (i) complying with Rules 14d-9 and Rule 14e-2(a) or Item 1012(a) of Regulation M-A and Rule 14d-9 promulgated under the Exchange Act or (iiB) making any disclosure to the stockholders of the Company that public statement if the Company Board (or any duly authorized a committee thereof, including thereof determines that the Special Committee acting in good faith after consultation failure to make such statement would reasonably be expected to be inconsistent with its outside legal counsel is required by its fiduciary duties under applicable Law. Any such Law or (ii) the Company or the Company Board from making any disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) required under the Exchange Act; provided that any such action that would otherwise constitute a Change of Board Recommendation shall only be made in accordance with Section 5.3.
(h) The Company acknowledges and agrees that, for purposes of determining whether a breach of this Section 5.3 has occurred, the actions of the Company, the Company Subsidiaries, each of the Company’s and the Company Subsidiaries’ respective officers and directors, each of the Specified Stockholders and X.X. Xxxxxx shall be deemed to be an Adverse Recommendation Change unless in such disclosure actions of the Company, and the Company Board or the Special Committee expressly reaffirms the Company Board Recommendation. For the avoidance shall be responsible for any breach of doubt, in no event shall the issuance of a “stop, look and listen” statement (or other similar statement expressly permitted by this Section 5.3(c)), taken by itself, be deemed to be an Adverse Recommendation Change5.3.
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