No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (a) solicit, initiate, facilitate or knowingly encourage (including by way of furnishing information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or facilitate or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal, (c) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other contract providing for, relating to or in connection with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to an existing or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives). 5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of its Representatives receives a bona fide unsolicited Company Takeover Proposal from any Person or group of Persons, which Company Takeover Proposal did not result from any breach of this Section 5.3, then Company and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available to Purchaser (through an electronic data room or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such
Appears in 1 contract
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, (a) Company shall not and shall cause each of the Company its Subsidiaries and their directors, officers and employees not to, and shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective other Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (ai) solicit, initiate, facilitate endorse, or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regardinginquiry, proposal or offer with respect to, or the making of or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer (whether firm or hypothetical) that constitutes, or could is reasonably be expected likely to lead to, a to any Company Takeover Acquisition Proposal, (bii) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection or data with respect to, any Company Takeover Acquisition Proposal, (iii) approve or recommend any Company Acquisition Proposal, or otherwise cooperate with (iv) approve or assist or participate inrecommend, or facilitate propose publicly to approve or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal, (c) grant any waiver, amendment or release of or underrecommend, or fail to enforceexecute or enter into, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, acquisition option agreement, joint venture agreement, partnership agreement or other contract providing foragreement (each, relating to or in connection with any a “Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover ProposalAlternative Acquisition Agreement”). Company shall, and shall cause each of the Company its Subsidiaries and each the Representatives of Company and its and the Company Subsidiaries' Representatives to Subsidiaries to, (iA) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, and cause to be terminated all existing discussions or negotiations with any Person that may be ongoing conducted heretofore with respect to an existing or potential any Company Takeover Proposal as of the date of this Plan of MergerAcquisition Proposal, (iiB) request promptly thereafter that the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any Person furnished with confidential provision of any confidentiality or non-public information concerning the standstill agreement relating to any Company Acquisition Proposal to which it or any of the Company Subsidiaries on its Affiliates or prior to the date hereof in connection with its consideration of Representatives is a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereofparty, and shall enforce the provisions of any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 agreement. Notwithstanding anything to the contrary contained hereinforegoing, if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 5.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would violate its fiduciary duties under applicable Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such Person, (y) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal, or (z) terminate this Agreement pursuant to Section 7.1(d)(iii) to enter into a Company Alternative Acquisition Agreement with respect to such Company Acquisition Proposal.
(b) Prior to taking any action under Section 5.3(a), the Company shall comply with the following obligations:
(i) the Company Board shall determine in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal is a Company Superior Proposal and such Company Superior Proposal has been made and has not been withdrawn and continues to be a Company Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by Purchaser pursuant to this Section 5.3(a);
(ii) Company shall give Purchaser at least ten (10) Business Days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Company Superior Proposal, including the identity of the party making such Company Superior Proposal), and shall contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the party making such Company Superior Proposal); and
(iii) Company shall negotiate, and shall cause its Representatives to negotiate, in good faith with Purchaser during such notice period to the extent Purchaser wishes to negotiate, to enable Purchaser to revise the terms of this Agreement such that it would cause such Company Superior Proposal to no longer constitute a Company Superior Proposal. In the event of any material change to the terms of such Company Superior Proposal, Company shall, in each case, be required to deliver to Purchaser a new written notice, the notice period shall have recommenced and Company shall be required to comply with its obligations under this Section 5.3 with respect to such new written notice, except that the deadline for such new written notice shall be reduced to five (5) Business Days (rather than ten (10) Business Days referenced in clause (ii) above).
(c) In addition to the obligations of Company set forth in Sections 5.3(a) and (b), Company promptly (and in any event within 24 hours of receipt) shall advise Purchaser in writing in the event Company or any of its Subsidiaries or Representatives receives (i) any Company Acquisition Proposal or (ii) any request for non-public information (other than requests for information in the ordinary course of business consistent with past practice and unrelated to a bona fide unsolicited Company Takeover Proposal from any Person Acquisition Proposal) or group of Personsto engage in negotiation that is reasonably likely to lead to or that contemplates a Company Acquisition Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.3, then Company in each case together with the material terms and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition conditions of such Company Takeover Acquisition Proposal that or request and the Company Board identity of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that Person making any such Company Takeover Acquisition Proposal constitutes, or is reasonably expected to lead to, request. Company shall keep Purchaser informed (orally and in writing) in all material respects on a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information timely basis of the status (including non-public informationafter the occurrence of any material amendment or modification) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made any such Company Takeover Acquisition Proposal or request and their respective Representatives; provided that shall provide Purchaser with copies of all material documentation and correspondence related hereto. Without limiting any of the foregoing, Company shall (subject to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available notify Purchaser orally and in writing if it determines to Purchaser (through an electronic data room or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or begin providing non-public information that is provided or to any such Person or group of Persons or their respective Representatives, if engage in negotiations concerning a Company Acquisition Proposal pursuant to Sections 5.3(a) and shall in no event begin providing such information was not previously provided to Purchaser or its Representatives, and (ii) engage engaging in or otherwise participate in such discussions or negotiations with the Person or group prior to providing such notice.
(d) For purposes of Persons making suchthis Agreement:
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from (a) Commencing upon the date of this Plan of Merger hereof and continuing at all times until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VIIAgreement pursuant to ARTICLE VIII and the Effective Time, the Company shall not, and shall cause its Subsidiaries not to, directly or indirectlyindirectly through any of its directors, officers or other employees, affiliates, representatives or other agents (including its financial, legal or accounting advisors (together, “Representatives”), (ai) solicit, initiate, facilitate seek, knowingly encourage, knowingly promote or knowingly encourage (including by way of furnishing information) support any inquiries regardinginquiry, or the making of any proposal or offer that constitutesfrom, (ii) furnish any information to, or could reasonably be expected to lead to, a Company Takeover Proposal, (biii) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or facilitate or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal, (c) grant any waiver, amendment or release of or under, or fail to enforcewith, any confidentiality, standstill or similar agreement Person (or other than Parent and its Representatives) regarding (A) any confidentiality, standstill or similar provision acquisition of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other contract providing for, relating to or in connection with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to an existing or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished with confidential or non-public information concerning the Company or any of its Subsidiaries or controlled affiliates, (B) any merger or consolidation with or involving the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of its Subsidiaries or controlled affiliates, (C) any acquisition or sale (including any public offering) of any of the stock or assets of the Company or any of its Subsidiaries delivered or made available to such Person controlled affiliates (other than the sale of assets in the ordinary course of business), (D) any strategic investment in or involving the Company or any of its Subsidiaries or affiliates (including, without limitation, any new investment round or recapitalization of the Company), or (E) any other similar transaction involving the Company or any of its Subsidiaries or controlled affiliates (each, a “Company Acquisition Proposal”). The Company hereby agrees that any action taken by one or more of the Company’s Subsidiaries or its or their Representatives would constitute a breach of this Section 6.15(a) if taken by the Company will constitute a breach of this provision by the Company.
(b) The Company shall immediately terminate, suspend or otherwise discontinue any and all discussions or other negotiations with any Persons regarding any Company Acquisition Proposal that are pending as of the date hereof, and shall not reinitiate or otherwise engage in any further discussions or other negotiations with any such Third Parties regarding any Company Acquisition Proposal unless this Agreement is terminated pursuant to ARTICLE VIII. The Company agrees not to release any such parties from any confidentiality agreement to which Company is a party.
(c) At all times until the earlier of the termination of this Agreement pursuant to ARTICLE VIII and the Effective Time, the Company Subsidiaries shall immediately notify Parent of any contact with, or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 Notwithstanding anything to receipt by the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of its Representatives receives from, any third Person regarding (i) any offer, proposal or inquiry regarding a bona fide unsolicited Company Takeover Proposal Acquisition Proposal, (ii) any request from any third Person for information or group access to the properties, books or records of Persons, which the Company Takeover or its Subsidiaries under circumstances that would be reasonably likely to lead to a Company Acquisition Proposal did not result or (iii) any other communication from any breach of third Person that would be reasonably likely to lead to a Company Acquisition Proposal. Any such notice delivered by the Company to Parent pursuant to this Section 5.36.15(c) shall be in writing and include (A) the identity of the Person making such offer, then Company and its Representatives may (a) contact such Person proposal or group of Persons and their Representatives to inquiry, request that such Person for information or group of Persons provide clarification of any term access, or condition of such Company Takeover Proposal that otherwise communicating with the Company Board of Directors determines in good faith to be ambiguous or unclearCompany, and (bB) if a copy of any material written correspondence (electronic or otherwise) or other documents and materials, and a summary of the Company Board terms and conditions of Directors determines in good faithsuch offer, after consultation with its independent financial advisors and outside legal counselproposal or inquiry, that such Company Takeover Proposal constitutes, request for information or is reasonably expected to lead to, a Company Superior Proposal access or other communication (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person extent not reflected in written correspondence or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject other documents or materials delivered to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available to Purchaser (through an electronic data room or otherwiseParent pursuant hereto), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such.
Appears in 1 contract
Samples: Merger Agreement (Informatica Corp)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3(a) The Company and the Bank agree that, Company shall not prior to the Effective Time, neither of them shall, and that they shall cause its and each of the Company Subsidiaries their officers, directors, employees, advisors, representatives and their Representatives agents not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (ai) solicit, initiate, facilitate initiate or knowingly encourage (including by way of furnishing providing information) ), or knowingly facilitate any inquiries regardinginquiries, proposals or offers with respect to, or the making of or completion of, any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Acquisition Proposal, (bii) provide or disclose any non-public information to any Person relating to the Company or the Bank in connection with an Acquisition Proposal, participate or engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person information in connection with any Company Takeover concerning an Acquisition Proposal, or otherwise cooperate with or assist or participate in, or take any action to facilitate or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover or implement an Acquisition Proposal, (ciii) grant any waiverapprove, amendment endorse, recommend, agree to or release of or underaccept, or fail propose publicly to enforceapprove, recommend, endorse, agree to or accept, any confidentialityAcquisition Proposal, standstill (iv) withdraw, modify or similar agreement amend the Company Recommendation in any manner adverse to Parent, (v) approve, recommend, endorse, agree to or any confidentialityaccept, standstill or similar provision of any other contract) propose to approve, recommend, endorse, agree to or (d) accept, or execute or enter into into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement or other contract providing for, relating similar agreement related to or in connection with any Company Takeover Acquisition Proposal or (vi) resolve, propose or agree to do any proposal of the foregoing. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any of the officers, directors, employees, agents or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each representatives of the Company Subsidiaries and each or the Bank (including any investment banker, attorney or accountant retained by the Company or the Bank) shall be a breach of its this Section 4.2(a) by the Company and the Bank. The Company Subsidiaries' Representatives and the Bank shall promptly inform their advisors and representatives of the obligations of the Company and the Bank under this Section 4.2(a). The Company and the Bank agree that they will immediately cease and cause to (i) immediately upon execution of this Plan of Merger, cease be terminated any solicitation, encouragementexisting activities, discussions or negotiations with any Person that may be ongoing Persons conducted heretofore with respect to an existing or potential Company Takeover any Acquisition Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished except with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior respect to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives transactions contemplated by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its RepresentativesAgreement).
5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of its Representatives receives a bona fide unsolicited Company Takeover Proposal from any Person or group of Persons, which Company Takeover Proposal did not result from any breach of this Section 5.3, then Company and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to The Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company Bank shall (subject to the terms of the Company Confidentiality Agreement) notify Parent promptly (and in any event within 24 hours) make available to Purchaser upon receipt after the date hereof by either of them or their representatives from any third party of any Acquisition Proposal. The Company and the Bank shall notify Parent promptly (through an electronic data room and in any event within two business days) of the identity of such third party and provide a copy of such Acquisition Proposal, indication, inquiry or otherwiserequest (or, where no such copy is available, a description of the material terms and conditions of such Acquisition Proposal, indication, inquiry or request), including any material modifications thereto. The Company and concurrently provide express written notification, via electronic mail notification to Purchaser the Bank shall keep Parent reasonably informed on a current basis (and in accordance with the applicable provisions of Section 9.8, any event within five business days of the availability ofoccurrence of any changes, developments, discussions or negotiations) of the status of any such Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), including furnishing copies of any written confidential revised proposals. Without limiting the foregoing, the Company shall promptly (and in any event within five business days) notify Parent orally and in writing if it determines to begin negotiations concerning a Superior Proposal pursuant to Section 4.2(c). The Company and the Bank shall not enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor the Bank is party to any agreement, which prohibits the Company and the Bank from providing such information to Parent.
(c) Notwithstanding Section 4.2(a), nothing contained in this Agreement shall prevent the Company or the Company Board from, prior to the adoption of this Agreement by the holders of Company Common Stock, engaging in any discussions or negotiations with, or providing any non-public information to, any Person, if and only to the extent that (i) the Company receives from such Person a bona fide written Superior Proposal, or an Acquisition Proposal, which was not solicited by the Company and did not otherwise violate the provisions of Section 4.2(a), and which the Company Board concludes in good faith (after consultation with its outside legal counsel and outside financial advisors) could reasonably be expected to result in a Superior Proposal and (after consultation with its outside legal counsel) that the failure to act on the Superior Proposal or Acquisition Proposal, as the case may be, could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, (ii) prior to providing or disclosing any non-public information to any Person in connection with such proposal, the Company Board receives from the Person making such Acquisition Proposal an executed confidentiality agreement containing terms no less restrictive on such Person than the terms contained in the Confidentiality Agreement, provided that such confidentiality agreement shall not be required to contain standstill provisions and shall not contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to this Section 4.2, and (iii) the Company concurrently discloses any such non-public information to Parent if such non-public information has not been disclosed previously to Parent.
(d) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Company Stockholder Approval, in response to a material development or change in circumstances which occurs or arises after the date of this Agreement (an “Intervening Event”), that was not known by the Company Board as of the date of this Agreement, the Company Board may, if it concludes in good faith (after consultation with its outside legal advisors) that failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, withdraw, modify or change its recommendation of this Agreement and the Acquisition (a “Company Change of Recommendation”), but only at a time that is after the fifth business day following Parent’s receipt of written notice from the Company advising Parent of its intention to do so; provided to any such Person or group of Persons or their respective Representativesthat, if such information action is in response to or relates to an Acquisition Proposal, then the Company Change of Recommendation shall be taken only in compliance with Section 4.2(e).
(e) Notwithstanding anything in this Agreement to the contrary, in response to an Acquisition Proposal which was not previously solicited by the Company or otherwise in violation of Section 4.2(a), if the Company Board concludes in good faith (after consultation with its outside legal and financial advisors) that an Acquisition Proposal constitutes a Superior Proposal and (after consultation with its legal advisors) that failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, the Company Board may at any time prior to the Company Stockholder Approval (i) effect a Company Change of Recommendation or (ii) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company Board may not effect such Company Change of Recommendation or termination unless and until (i) five business days have elapsed following delivery to Parent of a written notice of such determination by the Company Board and of the material terms and conditions of the Acquisition Proposal and the identity of the Person making the Acquisition Proposal, and, during such five business day period, the Company reasonably cooperates with Parent and CBM with respect thereto with the intent of enabling Parent and CBM to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and so that such Acquisition Proposal would no longer represent a Superior Proposal, including negotiating in good faith with Parent and its representatives with respect to any proposed revisions to the terms of this Agreement, (ii) at the end of such five business day period, the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel, that (A) in the case of a Company Change of Recommendation, failure to take such action could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws and (B) in the case of a termination of this Agreement, that such Acquisition Proposal remains a Superior Proposal as compared to the Acquisition, as supplemented by any counterproposals made by Parent; provided that, in the event the Company Board does not make the determination referred to Purchaser in this clause (ii) of this paragraph but thereafter determines to effect a Company Change of Recommendation or its Representativestermination pursuant to this Section 4.2(e), the foregoing procedures shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification, and (iiiii) engage contemporaneously with such termination, the Company enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal.
(f) Nothing in this Agreement shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company’s stockholders if the Company Board (after consultation with its legal advisors), concludes that its failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Law; it being understood that any such disclosure that does not reaffirm the Company Board’s recommendation of this Agreement and the Acquisition (and recommend that the Company’s shareholders reject the applicable tender offer or exchange offer within the ten day period specified by Rule 14d-9) or which is otherwise participate adverse to Parent and CBM shall be deemed a Company Change of Recommendation for purposes of this Agreement.
(g) Notwithstanding the foregoing, unless and until this Agreement shall have been terminated in discussions accordance with its terms (including a termination pursuant to Section 4.2(e)), the Company shall comply with its obligations under Section 5.2 whether or negotiations not the Company Board makes a Company Change of Recommendation or recommends any other offer or proposal. Any action pursuant to and in accordance with Sections 4.2(d),(e) or (f) shall not constitute a breach of the Person Company’s representations, warranties, covenants or group of Persons making suchagreements contained in this Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (First Community Bank Corp of America)
No Solicitation by Company. 5.3.1 Except as specifically permitted (a) Company agrees that it and its Subsidiaries will not (and Company will not permit its or its Subsidiaries' officers, directors, employees, agents or representatives, including any investment banker or other financial advisor, attorney, consultant, accountant or other Person retained by this Section 5.3Company or any of its Subsidiaries, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, ):
(i) directly or indirectly, (a) solicit, initiate, initiate or knowingly facilitate or knowingly encourage the making by any Person (other than Parent and its Subsidiaries) of any inquiry, proposal or offer or other agreement (including by way of furnishing information) any inquiries regarding, or the making of any proposal or offer to Company's Stockholders) that constitutes, constitutes or could reasonably be expected to would lead to, a proposal for any tender offer, merger, consolidation, recapitalization, reorganization, share exchange, business combination, liquidation, dissolution or similar transaction involving Company Takeover Proposal, (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regardingof its Subsidiaries and a third party, or furnish to any acquisition by a third party of any Company Capital Stock (other Person information than Company Common Stock issued by the Company upon the exercise of the Company Stock Options and/or the Company Warrants that are outstanding on the date hereof in accordance with their terms and other than in connection with any Interim Additional Financing) or any business or assets of Company Takeover Proposalor any of its Subsidiaries (other than acquisitions of a business or assets in the ordinary course of business that constitute less than 5% of the net revenues, net operating income and assets of Company and its Subsidiaries, taken as a whole), or otherwise cooperate with any combination of the foregoing, in a single transaction or assist a series of related transactions (in each case, an "Acquisition Proposal");
(ii) directly or indirectly, participate in, or facilitate or knowingly encourage any such inquiries, proposals, engage in discussions or negotiations or any effort or attempt to make a Company Takeover Proposalconcerning an Acquisition Proposal (and Company, (c) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other contract providing for, relating to or in connection with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each of the Company its Subsidiaries and each of its all such Persons shall immediately cease and the Company Subsidiaries' Representatives cause to (i) immediately upon execution of this Plan of Merger, cease be terminated any solicitation, encouragement, existing discussions or negotiations with any Person that may be ongoing third parties conducted heretofore with respect to an existing any Acquisition Proposal), or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that furnish or disclose to any Person furnished any information with confidential respect to or non-public in furtherance of any Acquisition Proposal, or provide access to its properties, books and records or other information concerning the or data to any Person with respect to or in furtherance of any Acquisition Proposal;
(iii) grant any waiver or release under any confidentiality agreement, standstill agreement or similar agreement with respect to Company or any of the Company Subsidiaries on its Subsidiaries; or
(iv) execute or prior enter into any agreement, understanding or arrangement with respect to the date hereof in connection with its consideration of a Company Takeover any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal promptly return or destroy all confidential any agreement, understanding or non-public information concerning Company arrangement relating to any Acquisition Proposal (or resolve or authorize or propose to agree to do any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representativesforegoing actions).
5.3.2 Notwithstanding anything to (b) Nothing contained in the contrary contained hereinforegoing Section 6.3(a) shall --------------- prevent Company or its Board of Directors, if at any time prior to obtaining receipt of Stockholders' Approval with respect to the Company Shareholder ApprovalMerger, Company from (i) taking and disclosing to the Stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders required to be made by applicable statute, law, rule or regulation in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to Stockholders with regard to any Acquisition Proposal; provided, however, that neither Company nor the Board of Directors of Company shall, except as specifically permitted by Section 6.4(b), --------------- withdraw, withhold, modify or change any recommendation regarding this Agreement, the Merger or the other transactions contemplated hereby or approve, recommend or declare advisable any Acquisition Proposal, and (ii) providing information (pursuant to a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Company from complying with its Representatives receives a bona fide unsolicited Company Takeover Proposal from obligations under this Agreement) to or engaging in any negotiations or discussions with any Person or group who has made (A) an unsolicited bona fide Acquisition Proposal with respect to all of Personsthe outstanding shares of capital stock of Company (whether by tender or exchange offer, which merger, consolidation or otherwise) or all or substantially all of the assets of Company Takeover Proposal did not result from any breach if, with respect to such actions, or (B) an unsolicited bona fide proposal for a Material Equity Financing (x) in the good faith judgment of this Section 5.3, then Company and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith of Company, taking into account, among other things, the likelihood of consummation and the other terms and conditions of such Acquisition Proposal or Material Equity Financing and after discussions with its financial advisors, such Acquisition Proposal or Material Equity Financing is believed to be ambiguous or unclear, reasonably likely to result in a transaction more favorable to the holders of Company Common Stock than the Merger (a "Superior Proposal") and (by) if the Company -------- -------- Board of Directors determines in good faith, of Company (after consultation with its independent financial advisors and outside legal counsel, ) believes that such that failure to do so would violate its fiduciary duties.
(c) Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided agrees that Company shall (subject to the terms of the Company Confidentiality Agreement) it will notify Parent promptly (and in any event within 24 hourstwenty-four hours of receipt) make available if any proposal or offer ------------------ relating to Purchaser (through or constituting an electronic data room Acquisition Proposal or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability ofMaterial Equity Financing is received by, any written confidential information is requested from, or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with are sought to be initiated or continued with, Company or any of its officers, directors, employees, agents or representatives. The notice shall be in writing and state the identity of the Person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms (including in the event of Persons making suchan oral offer or proposal, a writing that sets forth the material terms of such oral offer or proposal) and conditions of any Acquisition Proposal or Material Equity Financing. Thereafter, Company shall keep Parent fully informed on a prompt basis (and in any event within forty-eight hours of ----------------- receipt) of any material changes, additions or adjustments to the terms of any such proposal or offer.
(d) Nothing in this Section 6.3 shall permit Company to enter into ----------- any agreement with respect to an Acquisition Proposal or Material Equity Financing during the term of this Agreement, it being agreed that, during the term of this Agreement, Company shall not enter into any agreement with any Person with respect to or that provides for, or in any way facilitates, an Acquisition Proposal or Material Equity Financing, other than a confidentiality agreement permitted by Section 6.3(b). ---------------
(e) Notwithstanding any other provision of this Agreement, if, prior to obtaining Stockholders' Approval with respect to the Merger, the Board of Directors of Company determines, in its good faith judgment, that an Acquisition Proposal or Material Equity Financing is a Superior Proposal, the Board of Directors of Company may terminate this Agreement (subject to Company's obligations under Article 8); provided, that ----------
(i) Company provides at least three (3) business days' prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Parent,
(ii) during such three (3) Business Day period (or longer period if extended by the mutual agreement of Company and Parent), Company agrees to negotiate in good faith with Parent regarding such changes as Parent may propose to the terms of this Agreement, which would make the terms of this Agreement more favorable to the holders of Company Common Stock than the Superior Proposal; and
(iii) the Board of Directors of Company determines (after receipt of advice from its outside legal counsel and an independent financial advisor) that the Acquisition Proposal or Material Equity Financing is a Superior Proposal taking into account any modifications to the terms of this Agreement proposed in writing by Parent, and the Board of Directors of Company determines in good faith that such actions are required by its fiduciary duties under Delaware law. In the event of termination of this Agreement as provided in this Section ------- 6.3(e), this Agreement shall forthwith become void and there shall be ------ no further obligation on the part of Company, Parent, Acquisition Sub or their respective officers or directors, except as provided in Section 8.3 and except that in the case of any such termination, ------------ Section 6.6(b), Section 6.8 and Section 9.2 shall survive. --------------- ------------ ------------ Nothing in this Section 6.3(e) shall relieve Company from liability for any --------------- willful or intentional breach of this Agreement.
Appears in 1 contract
No Solicitation by Company. 5.3.1 (a) Company and its Subsidiaries shall immediately cease, and Company and its Subsidiaries shall cause each of their respective directors and officers and shall instruct each of their agents, advisors and representatives to immediately cease, any discussions or negotiations with any parties conducted prior to the date of this Agreement with respect to a Company Acquisition Proposal. Except as specifically permitted by this Section 5.35.10, after the execution and delivery of this Agreement, Company shall not not, and shall cause each of the Company its Subsidiaries and its and their Representatives directors and officers, and instructs its and their agents, advisors and representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (ai) solicit, initiate, facilitate initiate or knowingly encourage any inquiry with respect to, (including by way of furnishing informationii) participate or engage in any inquiries regardingnegotiations with any Person with, or the making of furnish any proposal or offer that constitutesnonpublic information relating to, or could reasonably be expected to lead to, a Company Takeover Proposal, (biii) engage or enter into, continue or otherwise participate in any discussions or negotiations with any Person regarding, or furnish to any other Person information in connection with any a Company Takeover Acquisition Proposal, except to notify such Person of the existence of the provisions of this Section 5.10.
(b) Notwithstanding Section 5.10(a), if, prior to the time Requisite Company Shareholder Approval is obtained, Company receives an unsolicited bona fide written Company Acquisition Proposal that the board of directors of Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that such Company Acquisition Proposal constitutes or otherwise cooperate with or assist or participate in, or facilitate or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt is reasonably likely to make lead to a Company Takeover Superior Proposal, Company may take the following actions: (1) furnish nonpublic information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal, but only if (A) prior to so furnishing such information, Company has entered
(c) grant any waiverExcept as set forth in Section 5.10(d) of this Agreement, amendment or release the board of or underdirectors of Company shall not (i) withhold, withdraw, or fail to enforce, any confidentiality, standstill or similar agreement modify (or any confidentialitypublicly propose to withhold, standstill withdraw or similar provision modify), in a manner adverse to Buyer and Buyer Bank, its recommendation referred to in Section 5.05 of any other contract) this Agreement, or (dii) approve or recommend (or publicly propose to approve or recommend) any Company Acquisition Proposal. Except as set forth in Section 5.10(d) of this Agreement, Company shall not, its board of directors shall not allow Company to, and Company shall cause its Subsidiaries and each of their respective directors and officers and instruct each of their agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, acquisition agreement or other contract providing for, agreement (except for confidentiality agreements referred to and entered into in accordance with the terms of Section 5.10(b) of this Agreement) relating to or in connection with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Superior Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to an existing or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 (d) Notwithstanding anything to the contrary contained hereinset forth in this Agreement, if at any time the board of directors of Company may, prior to obtaining the time the Requisite Company Shareholder ApprovalApproval is obtained, in response to a Company Superior Proposal or any of its Representatives receives a bona fide unsolicited Company Takeover Proposal from any Person or group of Persons, Intervening Event which Company Takeover Proposal did not result from any a breach of this Section 5.3, then Company and its Representatives may (a5.10(a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) ), make a Company Adverse Recommendation Change, if the board of directors of Company Board of Directors has determines in good faith, after consultation with receiving the advice of its independent financial advisors and outside legal counsel, that the failure to take such action would be reasonably likely to result in a violation of its fiduciary duties under applicable Law; provided, that the board of directors of Company Takeover Proposal constitutesmay not effect a Company Adverse Recommendation Change unless (1) Company has complied in all material respects with this Section 5.10, and (2) prior to making a Company Adverse Recommendation Change, Company provides prior written notice to Buyer four (4) Business Days in advance (the “Notice Period”) of its intention to take such action, and furnishes to Buyer a reasonable description of the events or circumstances giving rise to its determination to take such action (including, in the event such action is reasonably expected taken in response to lead toa Company Superior Proposal, a all material terms and conditions of such Company Superior Proposal (iincluding the identity of the party making such Company Superior Proposal)), and any material modifications to any of the foregoing, (3) furnishprior to taking such action, pursuant Company negotiates, and causes its financial, legal, and other advisors to an Acceptable Company Confidentiality Agreementnegotiate, information in good faith with Xxxxx, during the Notice Period (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject extent Buyer desires to so negotiate) any revision to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available to Purchaser (through an electronic data room or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchthis
Appears in 1 contract
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3(a) The Company agrees that, Company shall not prior to the Effective Time, neither it nor any of its Subsidiaries shall, and that it shall cause its and each of the Company Subsidiaries its Subsidiaries’ officers, directors, employees, advisors, representatives and their Representatives agents not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (ai) solicit, initiate, facilitate initiate or knowingly encourage (including by way of furnishing providing information) ), or knowingly facilitate any inquiries regardinginquiries, proposals or offers with respect to, or the making of or completion of, any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Acquisition Proposal, (bii) provide or disclose any non-public information to any Person relating to the Company or its Subsidiaries in connection with a Company Acquisition Proposal, participate or engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person information in connection with any concerning a Company Takeover Acquisition Proposal, or otherwise cooperate with or assist or participate in, or take any action to facilitate or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt to make or implement a Company Takeover Acquisition Proposal, (ciii) grant any waiverapprove, amendment endorse, recommend, agree to or release of or underaccept, or fail propose publicly to enforceapprove, recommend, endorse, agree to or accept, any confidentialityCompany Acquisition Proposal, standstill (iv) withdraw, modify or similar agreement amend the Company Recommendation in any manner adverse to Parent, (v) approve, recommend, endorse, agree to or any confidentialityaccept, standstill or similar provision of any other contract) propose to approve, recommend, endorse, agree to or (d) accept, or execute or enter into into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement or other contract providing for, relating similar agreement related to or in connection with any Company Takeover Acquisition Proposal or (vi) resolve, propose or agree to do any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each of the Company foregoing. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries and each or any of its and the Company’s or the Company Subsidiaries' Representatives to ’ officers, directors, employees, agents or representatives (iincluding any investment banker, attorney or accountant retained by the Company or the Company Subsidiaries) immediately upon execution shall be a breach of this Plan Section 4.3(a) by the Company. The Company shall promptly inform its advisors and representatives of Merger, the Company’s obligations under this Section 4.3(a). The Company agrees that it will immediately cease and cause to be terminated any solicitation, encouragementexisting activities, discussions or negotiations with any Person that may be ongoing Persons conducted heretofore with respect to an existing or potential any Company Takeover Acquisition Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished except with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior respect to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives transactions contemplated by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its RepresentativesAgreement).
5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of its Representatives receives a bona fide unsolicited Company Takeover Proposal from any Person or group of Persons, which Company Takeover Proposal did not result from any breach of this Section 5.3, then Company and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that The Company shall (subject to the terms of the Company Confidentiality Agreement) notify Parent promptly (and in any event within 24 hours) make available to Purchaser upon receipt after the date hereof by it or its Subsidiaries or representatives from any third party of any Company Acquisition Proposal. The Company shall notify Parent promptly (through an electronic data room and in any event within two business days) of the identity of such third party and provide a copy of such Company Acquisition Proposal, indication, inquiry or otherwiserequest (or, where no such copy is available, a description of the material terms and conditions of such Company Acquisition Proposal, indication, inquiry or request), including any material modifications thereto. The Company shall keep Parent reasonably informed on a current basis (and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, any event within five business days of the availability ofoccurrence of any changes, developments, discussions or negotiations) of the status of any such Company Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), including furnishing copies of any written confidential revised proposals. Without limiting the foregoing, the Company shall promptly (and in any event within five business days) notify Parent orally and in writing if it determines to begin negotiations concerning a Company Superior Proposal pursuant to Section 4.3(c). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is party to any agreement, which prohibits the Company from providing such information to Parent.
(c) Notwithstanding Section 4.3(a), nothing contained in this Agreement shall prevent the Company or the Company Board from, prior to the adoption of this Agreement by the holders of Company Common Stock, engaging in any discussions or negotiations with, or providing any non-public information to, any Person, if and only to the extent that (i) the Company receives from such Person a bona fide written Company Superior Proposal, or a Company Acquisition Proposal, which was not solicited by the Company and did not otherwise violate the provisions of Section 4.3(b), and which the Company Board concludes in good faith (after consultation with its outside legal counsel and outside financial advisors) could reasonably be expected to result in a Company Superior Proposal and (after consultation with its outside legal counsel) that the failure to act on the Company Superior Proposal or Company Acquisition Proposal, as the case may be, could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, (ii) prior to providing or disclosing any non-public information to any Person in connection with such proposal, the Company Board receives from the Person making such Company Acquisition Proposal an executed confidentiality agreement containing terms no less restrictive on such Person than the terms contained in the Confidentiality Agreement, provided that such confidentiality agreement shall not be required to contain standstill provisions and shall not contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to this Section 4.3, and (iii) the Company concurrently discloses any such non-public information to Parent if such non-public information has not been disclosed previously to Parent.
(d) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Company Stockholder Approval, in response to a material development or change in circumstances which occurs or arises after the date of this Agreement (an “Intervening Event”), that was not known by the Company Board as of the date of this Agreement, the Company Board may, if it concludes in good faith (after consultation with its outside legal advisors) that failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, withdraw, modify or change its recommendation of this Agreement and the Merger (a “Company Change of Recommendation”), but only at a time that is after the fifth business day following Parent’s receipt of written notice from the Company advising Parent of its intention to do so; provided to any such Person or group of Persons or their respective Representativesthat, if such information action is in response to or relates to a Company Acquisition Proposal, then the Company Change of Recommendation shall be taken only in compliance with Section 4.3(e).
(e) Notwithstanding anything in this Agreement to the contrary, in response to a Company Acquisition Proposal which was not previously solicited by the Company or otherwise in violation of Section 4.3(a), if the Company Board concludes in good faith (after consultation with its outside legal and financial advisors) that a Company Acquisition Proposal constitutes a Company Superior Proposal and (after consultation with its legal advisors) that failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, the Company Board may at any time prior to the Company Stockholder Approval (i) effect a Company Change of Recommendation or (ii) terminate this Agreement to enter into a definitive agreement with respect to such Company Superior Proposal; provided, however, that the Company Board may not effect such Company Change of Recommendation or termination unless and until (i) five business days have elapsed following delivery to Parent of a written notice of such determination by the Company Board and of the material terms and conditions of the Company Acquisition Proposal and the identity of the Person making the Company Acquisition Proposal, and, during such five business day period, the Company reasonably cooperates with Parent and Merger Sub with respect thereto with the intent of enabling Parent and Merger Sub to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and so that such Company Acquisition Proposal would no longer represent a Company Superior Proposal, including negotiating in good faith with Parent and its representatives with respect to any proposed revisions to the terms of this Agreement, (ii) at the end of such five business day period, the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel, that (A) in the case of a Company Change of Recommendation, failure to take such action could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws and (B) in the case of a termination of this Agreement, that such Company Acquisition Proposal remains a Company Superior Proposal as compared to the Merger, as supplemented by any counterproposals made by Parent; provided that, in the event the Company Board does not make the determination referred to Purchaser in this clause (ii) of this paragraph but thereafter determines to effect a Company Change of Recommendation or its Representativestermination pursuant to this Section 4.3(e), the foregoing procedures shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification, and (iiiii) engage contemporaneously with such termination, the Company enters into a definitive acquisition, merger or similar agreement to effect the Company Superior Proposal.
(f) Nothing in this Agreement shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company’s stockholders if the Company Board (after consultation with its legal advisors), concludes that its failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Law; it being understood that any such disclosure that does not reaffirm the Company Board’s recommendation of this Agreement and the Merger (and recommend that the Company’s shareholders reject the applicable tender offer or exchange offer within the ten day period specified by Rule 14d-9) or which is otherwise participate adverse to Parent and Merger Sub shall be deemed a Company Change of Recommendation for purposes of this Agreement.
(g) Notwithstanding the foregoing, unless and until this Agreement shall have been terminated in discussions accordance with its terms, the Company shall comply with its obligations under Section 5.2 whether or negotiations not the Company Board makes a Company Change of Recommendation or recommends any other offer or proposal. Any action pursuant to and in accordance with Sections 4.3(d),(e) or (f) shall not constitute a breach of the Person Company’s representations, warranties, covenants or group of Persons making suchagreements contained in this Agreement.
Appears in 1 contract
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (a) The Company agrees that (i) neither it nor any of its Subsidiaries shall, and it shall not knowingly permit any of its officers, directors, employees, agents or representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, "Company Agents") to, solicit, initiate, facilitate initiate or knowingly encourage (including by way of furnishing material non-public information) any inquiries regardinginquiry, proposal or the making of offer (including, without limitation, any proposal or offer that constitutesto its stockholders) with respect to an Alternative Transaction (any such inquiry, proposal or could reasonably be expected to lead to, a Company Takeover offer herein called an "Alternative Transaction Proposal, (b") or participate or engage or enter into, continue or otherwise participate in any discussions or negotiations regardingconcerning an Alternative Transaction Proposal; and (ii) it will immediately cease and cause to be terminated any existing negotiations with any third parties conducted heretofore with respect to any of the foregoing and shall advise its Company Agents to immediately cease all such activities; provided, however, that nothing contained in this Agreement shall prevent the Company or the Board from (A) complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Alternative Transaction Proposal, or furnish (B) providing information to, or participating or engaging in -41- any discussions or negotiations with, any Person (or group of Persons) who has made an unsolicited Alternative Transaction Proposal with respect to a potential Alternative Transaction if and only to the extent that (i) the Board determines in good faith (after consultation with its legal and financial advisors) that such Alternative Transaction Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Alternative Transaction Proposal and the Person making the Alternative Transaction Proposal, and would, if consummated, result in a transaction more favorable to the Company's stockholders than the transactions contemplated by the Transaction Documents (a "Superior Proposal"), (ii) the Board determines in good faith (after consultation with its outside legal counsel) that the failure to do so would be inconsistent with its fiduciary obligations under applicable Law, (iii) prior to providing any information or data to any other Person information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or facilitate or knowingly encourage a Superior Proposal by any such inquiriesPerson, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal, (c) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar the Board receives from such Person an executed confidentiality agreement (or any confidentiality, standstill or similar provision of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement that is in principle, merger agreement, acquisition agreement or other contract providing for, relating to or in connection reasonably customary form and consistent with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shallthe Company's obligations hereunder, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries' Representatives (iv) prior to (i) immediately upon execution of this Plan of Merger, cease providing any solicitation, encouragement, information or data to any Person or entering into discussions or negotiations with any Person, the Board notifies WIC and Purchaser promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any of its Subsidiaries or any of their Company Agents indicating, in connection with such notice, the identity of such Person that may be ongoing and the material terms and conditions of any proposals or offers.
(b) The Company shall promptly notify WIC and Purchaser of the receipt of any Alternative Transaction Proposal, including the identity of the Person making such inquiry, proposal or offer, and the material terms and conditions of any such proposal, and shall keep WIC and Purchaser informed on a timely basis of any material changes with respect thereto.
(c) Nothing in this Section 4.9 shall permit the Company to enter into any agreement with respect to an existing Alternative Transaction Proposal during the term of this Agreement, it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any Person that provides for, or potential Company Takeover Proposal as in any way facilitates, an Alternative Transaction Proposal, other than a confidentiality agreement that is in reasonably customary form and consistent with the Company's obligations hereunder.
(d) For purposes of this Agreement, "Alternative Transaction" means any of (i) a transaction pursuant to which any Person or Persons other than WIC, Purchaser or their Affiliates (a "Third Party") acquires or would acquire more than 5% of the date outstanding shares of this Plan any class of Mergerequity securities of the Company, whether from the Company or pursuant to a tender offer or exchange offer or otherwise, (ii) request promptly thereafter that a merger, consolidation or other business combination involving the Company pursuant to which any Person furnished with confidential or non-public information concerning Third Party acquires more than 5% of the outstanding equity securities of the Company or the entity surviving such merger, consolidation or business combination, or (iii) any transaction pursuant to which any Third Party acquires or would acquire control of assets (including for this purpose the outstanding equity securities of Subsidiaries of the Company and securities of the entity surviving any merger, consolidation or business combination including any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any Company's Subsidiaries) of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of its Representatives receives Subsidiaries, having a bona fide unsolicited Company Takeover Proposal from any Person or group fair market value (as determined by the Board in good faith) equal to more than 5% of Persons, which Company Takeover Proposal did not result from any breach the fair market value of this Section 5.3, then all the assets of the Company and its Representatives may (a) contact Subsidiaries, taken as a whole, immediately prior to such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available to Purchaser (through an electronic data room or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchtransaction.
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No Solicitation by Company. 5.3.1 Except as specifically permitted (a) Company agrees that it and its Subsidiaries will not (and Company will not permit its or its Subsidiaries' officers, directors, employees, agents or representatives, including any investment banker or other financial advisor, attorney, consultant, accountant or other Person retained by this Section 5.3Company or any of its Subsidiaries, Company shall not and shall cause each of the Company Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, ):
(i) directly or indirectly, (a) solicit, initiate, initiate or knowingly facilitate or knowingly encourage the making by any Person (other than Parent and its Subsidiaries) of any inquiry, proposal or offer or other agreement (including by way of furnishing information) any inquiries regarding, or the making of any proposal or offer to Company's Stockholders) that constitutes, constitutes or could reasonably be expected to would lead to, a proposal for any tender offer, merger, consolidation, recapitalization, reorganization, share exchange, business combination, liquidation, dissolution or similar transaction involving Company Takeover Proposal, (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regardingof its Subsidiaries and a third party, or furnish to any acquisition by a third party of any Company Capital Stock (other Person information than Company Common Stock issued by the Company upon the exercise of the Company Stock Options and/or the Company Warrants that are outstanding on the date hereof in accordance with their terms and other than in connection with any Interim Additional Financing) or any business or assets of Company Takeover Proposalor any of its Subsidiaries (other than acquisitions of a business or assets in the ordinary course of business that constitute less than 5% of the net revenues, net operating income and assets of Company and its Subsidiaries, taken as a whole), or otherwise cooperate with any combination of the foregoing, in a single transaction or assist a series of related transactions (in each case, an "Acquisition Proposal");
(ii) directly or indirectly, participate in, or facilitate or knowingly encourage any such inquiries, proposals, engage in discussions or negotiations or any effort or attempt to make a Company Takeover Proposalconcerning an Acquisition Proposal (and Company, (c) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other contract providing for, relating to or in connection with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each of the Company its Subsidiaries and each of its all such Persons shall immediately cease and the Company Subsidiaries' Representatives cause to (i) immediately upon execution of this Plan of Merger, cease be terminated any solicitation, encouragement, existing discussions or negotiations with any Person that may be ongoing third parties conducted heretofore with respect to an existing any Acquisition Proposal), or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that furnish or disclose to any Person furnished any information with confidential respect to or non-public in furtherance of any Acquisition Proposal, or provide access to its properties, books and records or other information concerning the or data to any Person with respect to or in furtherance of any Acquisition Proposal;
(iii) grant any waiver or release under any confidentiality agreement, standstill agreement or similar agreement with respect to Company or any of the Company Subsidiaries on its Subsidiaries; or
(iv) execute or prior enter into any agreement, understanding or arrangement with respect to the date hereof in connection with its consideration of a Company Takeover any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal promptly return or destroy all confidential any agreement, understanding or non-public information concerning Company arrangement relating to any Acquisition Proposal (or resolve or authorize or propose to agree to do any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representativesforegoing actions).
5.3.2 Notwithstanding anything to (b) Nothing contained in the contrary contained hereinforegoing Section 6.3(a) shall prevent Company or its Board of Directors, if at any time prior to obtaining receipt of Stockholders' Approval with respect to the Company Shareholder ApprovalMerger, Company from (i) taking and disclosing to the Stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders required to be made by applicable statute, law, rule or regulation in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to Stockholders with regard to any Acquisition Proposal; provided, however, that neither Company nor the Board of Directors of Company shall, except as specifically permitted by Section 6.4(b), withdraw, withhold, modify or change any recommendation regarding this Agreement, the Merger or the other transactions contemplated hereby or approve, recommend or declare advisable any Acquisition Proposal, and (ii) providing information (pursuant to a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Company from complying with its Representatives receives a bona fide unsolicited Company Takeover Proposal from obligations under this Agreement) to or engaging in any negotiations or discussions with any Person or group who has made (A) an unsolicited bona fide Acquisition Proposal with respect to all of Personsthe outstanding shares of capital stock of Company (whether by tender or exchange offer, which merger, consolidation or otherwise) or all or substantially all of the assets of Company Takeover Proposal did not result from any breach if, with respect to such actions, or (B) an unsolicited bona fide proposal for a Material Equity Financing (x) in the good faith judgment of this Section 5.3, then Company and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith of Company, taking into account, among other things, the likelihood of consummation and the other terms and conditions of such Acquisition Proposal or Material Equity Financing and after discussions with its financial advisors, such Acquisition Proposal or Material Equity Financing is believed to be ambiguous or unclear, reasonably likely to result in a transaction more favorable to the holders of Company Common Stock than the Merger (a "Superior Proposal") and (by) if the Company Board of Directors determines in good faith, of Company (after consultation with its independent financial advisors and outside legal counsel, ) believes that such that failure to do so would violate its fiduciary duties.
(c) Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided agrees that Company shall (subject to the terms of the Company Confidentiality Agreement) it will notify Parent promptly (and in any event within 24 hourstwenty-four hours of receipt) make available if any proposal or offer relating to Purchaser (through or constituting an electronic data room Acquisition Proposal or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability ofMaterial Equity Financing is received by, any written confidential information is requested from, or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with are sought to be initiated or continued with, Company or any of its officers, directors, employees, agents or representatives. The notice shall be in writing and state the identity of the Person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms (including in the event of Persons making suchan oral offer or proposal, a writing that sets forth the material terms of such oral offer or proposal) and conditions of any Acquisition Proposal or Material Equity Financing. Thereafter, Company shall keep Parent fully informed on a prompt basis (and in any event within forty-eight hours of receipt) of any material changes, additions or adjustments to the terms of any such proposal or offer.
(d) Nothing in this Section 6.3 shall permit Company to enter into any agreement with respect to an Acquisition Proposal or Material Equity Financing during the term of this Agreement, it being agreed that, during the term of this Agreement, Company shall not enter into any agreement with any Person with respect to or that provides for, or in any way facilitates, an Acquisition Proposal or Material Equity Financing, other than a confidentiality agreement permitted by Section 6.3(b).
(e) Notwithstanding any other provision of this Agreement, if, prior to obtaining Stockholders' Approval with respect to the Merger, the Board of Directors of Company determines, in its good faith judgment, that an Acquisition Proposal or Material Equity Financing is a Superior Proposal, the Board of Directors of Company may terminate this Agreement (subject to Company's obligations under Article 8); provided, that
(i) Company provides at least three (3) business days' prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Parent,
(ii) during such three (3) Business Day period (or longer period if extended by the mutual agreement of Company and Parent), Company agrees to negotiate in good faith with Parent regarding such changes as Parent may propose to the terms of this Agreement, which would make the terms of this Agreement more favorable to the holders of Company Common Stock than the Superior Proposal; and
(iii) the Board of Directors of Company determines (after receipt of advice from its outside legal counsel and an independent financial advisor) that the Acquisition Proposal or Material Equity Financing is a Superior Proposal taking into account any modifications to the terms of this Agreement proposed in writing by Parent, and the Board of Directors of Company determines in good faith that such actions are required by its fiduciary duties under Delaware law. In the event of termination of this Agreement as provided in this Section 6.3(e), this Agreement shall forthwith become void and there shall be no further obligation on the part of Company, Parent, Acquisition Sub or their respective officers or directors, except as provided in Section 8.3 and except that in the case of any such termination, Section 6.6(b), Section 6.8 and Section 9.2 shall survive. Nothing in this Section 6.3(e) shall relieve Company from liability for any willful or intentional breach of this Agreement.
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No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of the Company its Subsidiaries and their Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VIISection 7.1, directly or indirectly, (a) solicit, initiate, facilitate encourage or knowingly encourage facilitate (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, or (b) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person material non-public information in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or facilitate encourage or knowingly encourage facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal, (c) grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other contract providing for, relating to or in connection with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries' ’ Representatives to (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to an existing or potential a Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any such Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of and the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room dataroom access previously granted to any such Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of its Representatives receives a bona fide unsolicited Company Takeover Proposal from any Person or group of Persons, which Company Takeover Proposal did not result from any breach of this Section 5.3, then Company and its Representatives may (a) contact such Person or group Group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal Proposal, and that failure to take such action would more likely than not to result in a breach of the Company Board of Directors’ fiduciary duties (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available to Purchaser (through an electronic data room dataroom or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or material non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchsuch Company Takeover Proposal and their respective Representatives; provided further that Company shall promptly provide to Purchaser (A) a copy of any Company Takeover Proposal made in writing by any such Person or group of Persons to Company, any of the Company Subsidiaries, or any of their respective Representatives, and the identity of the Person making the Company Takeover Proposal, and (B) a written summary of the material terms of any such Company Takeover Proposal not made in writing. For the purposes of this Plan of Merger, “Acceptable Company Confidentiality Agreement” means any confidentiality agreement that contains terms that are no less favorable to Company than those contained in the Confidentiality Agreement.
Appears in 1 contract
No Solicitation by Company. 5.3.1 (a) Company and its Subsidiaries shall immediately cease, and Company and its Subsidiaries shall cause each of their respective directors and officers and shall instruct each of their agents, advisors and representatives to immediately cease, any discussions or negotiations with any parties conducted prior to the date of this Agreement with respect to a Company Acquisition Proposal. Except as specifically permitted by this Section 5.35.10, after the execution and delivery of this Agreement, Company shall not not, and shall cause each of the Company its Subsidiaries and its and their Representatives directors and officers, and instructs its and their agents, advisors and representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (ai) solicit, initiate, facilitate initiate or knowingly encourage any inquiry with respect to, (including by way of furnishing informationii) participate or engage in any inquiries regardingnegotiations with any Person with, or the making of furnish any proposal or offer that constitutesnonpublic information relating to, or could reasonably be expected to lead to(iii) engage or participate in any discussions with any Person regarding, a Company Takeover Acquisition Proposal, except to notify such Person of the existence of the provisions of this Section 5.10.
(b) Notwithstanding Section 5.10(a), if, prior to the time Requisite Company Shareholder Approval is obtained, Company receives an unsolicited bona fide written Company Acquisition Proposal that the board of directors of Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Superior Proposal, Company may take the following actions: (1) furnish nonpublic information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal, but only if (A) prior to so furnishing such information, Company has entered into a customary confidentiality agreement with such Person on terms no less favorable to Company than the mutual confidentiality agreement by and between Company and Buyer dated as of July 25, 2024, and (B) all such information has previously been provided to Buyer or is provided to Buyer prior to or contemporaneously with the time it is provided to the Person making such Company Superior Proposal or such Person’s representatives; and (2) engage or enter into, continue or otherwise participate in any discussions or negotiations regardingwith such Person with respect to the Company Superior Proposal. Company promptly (and in any event within forty-eight (48) hours) shall advise Buyer orally and in writing of the receipt of (i) any proposal that constitutes or is reasonably likely to lead to a Company Acquisition Proposal and the material terms of such proposal (including the identity of the party making such proposal and, if applicable, copies of any documents or furnish correspondence evidencing such proposal), and (ii) any request for information relating to Company or any of its Subsidiaries other Person than requests for information not reasonably likely to be related to a Company Acquisition Proposal. Company shall keep Buyer informed on a reasonably current basis (and in connection with any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or facilitate or knowingly encourage event at least once every two (2) Business Days) of the status of any such inquiries, proposals, discussions or negotiations or Company Acquisition Proposal (including any effort or attempt material change to make a Company Takeover Proposal, its terms).
(c) grant any waiverExcept as set forth in Section 5.10(d) of this Agreement, amendment or release the board of or underdirectors of Company shall not (i) withhold, withdraw, or fail to enforce, any confidentiality, standstill or similar agreement modify (or any confidentialitypublicly propose to withhold, standstill withdraw or similar provision modify), in a manner adverse to Buyer and Buyer Bank, its recommendation referred to in Section 5.05 of any other contract) this Agreement, or (dii) approve or recommend (or publicly propose to approve or recommend) any Company Acquisition Proposal. Except as set forth in Section 5.10(d) of this Agreement, Company shall not, its board of directors shall not allow Company to, and Company shall cause its Subsidiaries and each of their respective directors and officers and instruct each of their agents, advisors and representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, acquisition agreement or other contract providing for, agreement (except for confidentiality agreements referred to and entered into in accordance with the terms of Section 5.10(b) of this Agreement) relating to or in connection with any Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Superior Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to an existing or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 (d) Notwithstanding anything to the contrary contained hereinset forth in this Agreement, if at any time the board of directors of Company may, prior to obtaining the time the Requisite Company Shareholder ApprovalApproval is obtained, in response to a Company Superior Proposal or any of its Representatives receives a bona fide unsolicited Company Takeover Proposal from any Person or group of Persons, Intervening Event which Company Takeover Proposal did not result from any a breach of this Section 5.3, then Company and its Representatives may (a5.10(a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) ), make a Company Adverse Recommendation Change, if the board of directors of Company Board of Directors has determines in good faith, after receiving the advice of its outside counsel, that the failure to take such action would be reasonably likely to result in a violation of its fiduciary duties under applicable Law; provided, that the board of directors of Company may not effect a Company Adverse Recommendation Change unless (1) Company has complied in all material respects with this Section 5.10, and (2) prior to making a Company Adverse Recommendation Change, Company provides prior written notice to Buyer four (4) Business Days in advance (the “Notice Period”) of its intention to take such action, and furnishes to Buyer a reasonable description of the events or circumstances giving rise to its determination to take such action (including, in the event such action is taken in response to a Company Superior Proposal, all material terms and conditions of such Company Superior Proposal (including the identity of the party making such Company Superior Proposal)), and any material modifications to any of the foregoing, (3) prior to taking such action, Company negotiates, and causes its financial, legal, and other advisors to negotiate, in good faith with Buyer, during the Notice Period (to the extent Buyer desires to so negotiate) any revision to the terms of this Agreement that Buyer desires to propose in writing prior to the end of such Notice Period, and (4) after the conclusion of any Notice Period, the board of directors of Company determines in good faith, after giving effect to all of the adjustments or revisions (if any) which may be offered by Buyer pursuant to sub-clause (3) above, that in the case of a Company Acquisition Proposal, such Company Acquisition Proposal continues to constitute a Superior Proposal, and in the case of a Company Acquisition Proposal or Intervening Event, it nevertheless would be reasonably likely to result in a violation of its fiduciary duties under applicable Law to make or continue to make the Company Board Recommendation. Any material amendment to any Company Superior Proposal will be deemed to be a new Company Superior Proposal for purposes of this Section 5.10(d) and will required a new Notice Period as referred to in this Section 5.10(d), provided, that such new Notice Period shall be three (3) Business Days,
(e) Nothing contained in Section 5.05 of this Agreement or this Section 5.10 shall prohibit Company or its board of directors from (i) complying with its disclosure obligations under U.S. federal or state law with regard to a Company Acquisition Proposal, including Rule 14a-9, 14d-9 or 14e-2 promulgated under the Exchange Act, or, (ii) making any disclosure to Company’s shareholders if, after consultation with its independent financial advisors and outside legal counsel, Company determines that such disclosure is reasonably required under applicable Law; provided, however, that any such disclosure relating to a Company Takeover Acquisition Proposal constitutesshall be deemed to be a Company Adverse Recommendation Change unless it is limited to a stop, look, and listen communication or Company’s board of directors reaffirms the Company Board Recommendation in such disclosure and does not recommend that Company shareholders tender their shares or otherwise support such Company Acquisition Proposal, or is reasonably expected to lead to, a Company Superior Proposal (iiii) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the informing any Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available to Purchaser (through an electronic data room or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, existence of the availability of, any written confidential or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage provisions contained in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchthis Section 5.10.
Appears in 1 contract
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, (a) Company shall not and shall cause each of the Company its Subsidiaries and their directors, officers and employees not to, and shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective other Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (ai) solicit, initiate, facilitate endorse, or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regardinginquiry, proposal or offer with respect to, or the making of or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer (whether firm or hypothetical) that constitutes, or could is reasonably be expected likely to lead to, a to any Company Takeover Acquisition Proposal, (bii) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection or data with respect to, any Company Takeover Acquisition Proposal, (iii) approve or recommend any Company Acquisition Proposal, or otherwise cooperate with (iv) approve or assist or participate inrecommend, or facilitate propose publicly to approve or knowingly encourage any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal, (c) grant any waiver, amendment or release of or underrecommend, or fail to enforceexecute or enter into, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contract) or (d) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, acquisition option agreement, joint venture agreement, partnership agreement or other contract providing foragreement (each, relating to or in connection with any a “Company Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover ProposalAlternative Acquisition Agreement”). Company shall, and shall cause each of the Company its Subsidiaries and each the Representatives of Company and its and the Company Subsidiaries' Representatives to Subsidiaries to, (iA) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, and cause to be terminated all existing discussions or negotiations with any Person that may be ongoing conducted heretofore with respect to an existing or potential any Company Takeover Proposal as of the date of this Plan of MergerAcquisition Proposal, (iiB) request promptly thereafter that the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any Person furnished with confidential provision of any confidentiality or non-public information concerning the standstill agreement relating to any Company Acquisition Proposal to which it or any of the Company Subsidiaries on its Affiliates or prior to the date hereof in connection with its consideration of Representatives is a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereofparty, and shall enforce the provisions of any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 agreement. Notwithstanding anything to the contrary contained hereinforegoing, if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 5.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to result in to a Company Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) of this Section 5.3(a) would violate its fiduciary duties under applicable Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such Person, (y) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal, or (z) terminate this Agreement pursuant to Section 7.1(d)(iii) to enter into a Company Alternative Acquisition Agreement with respect to such Company Acquisition Proposal.
(b) Prior to taking any action under Section 5.3(a)(z), the Company shall comply with the following obligations:
(i) within three (3) Business Days after notice to Purchaser of receipt of a Company Acquisition Proposal pursuant to Section 5.3(c) of this Agreement, the Company Board shall determine in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal is, or is reasonably likely to result in, a Company Superior Proposal and such Company Superior Proposal has been made and has not been withdrawn and continues to be a Company Superior Proposal after taking into account all adjustments to the terms of this Agreement that may be offered by Purchaser pursuant to this Section 5.3;
(ii) within three (3) Business Days after notice to Purchaser of receipt of a Company Acquisition Proposal pursuant to Section 5.3(c) of this Agreement, Company shall give Purchaser at least ten (10) Business Days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Company Superior Proposal, including the identity of the party making such Company Superior Proposal), and shall contemporaneously provide an unredacted copy of the relevant proposed transaction agreements with the party making such Company Superior Proposal) to Purchaser; and
(iii) Company shall negotiate, and shall cause its Representatives to negotiate, in good faith with Purchaser during such notice period to the extent Purchaser wishes to negotiate, to enable Purchaser to revise the terms of this Agreement such that it would cause such Company Superior Proposal to no longer constitute a Company Superior Proposal. In the event of any material change to the terms of such Company Superior Proposal, Company shall, in each case, be required to deliver to Purchaser a new written notice, the notice period shall have recommenced and Company shall be required to comply with its obligations under this Section 5.3 with respect to such new written notice, except that the deadline for such new written notice shall be reduced to five (5) Business Days (rather than ten (10) Business Days referenced in clause (ii) above).
(c) In addition to the obligations of Company set forth in Sections 5.3(a) and (b), Company promptly (and in any event within 24 hours of receipt) shall advise Purchaser in writing in the event Company or any of its Subsidiaries or Representatives receives (i) any Company Acquisition Proposal or (ii) any request for non-public information (other than requests for information in the ordinary course of business consistent with past practice and unrelated to a bona fide unsolicited Company Takeover Proposal from any Person Acquisition Proposal) or group of Personsto engage in negotiation that is reasonably likely to lead to or that contemplates a Company Acquisition Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.3, then Company in each case together with the material terms and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition conditions of such Company Takeover Acquisition Proposal that or request and the Company Board identity of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that Person making any such Company Takeover Acquisition Proposal constitutes, or is reasonably expected to lead to, request. Company shall keep Purchaser informed (orally and in writing) in all material respects on a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information timely basis of the status (including non-public informationafter the occurrence of any material amendment or modification) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made any such Company Takeover Acquisition Proposal or request and their respective Representatives; provided that shall provide Purchaser with copies of all material documentation and correspondence related hereto. Without limiting any of the foregoing, Company shall (subject to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available notify Purchaser orally and in writing if it determines to Purchaser (through an electronic data room or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or begin providing non-public information that is provided or to any such Person or group of Persons or their respective Representatives, if engage in negotiations concerning a Company Acquisition Proposal pursuant to Sections 5.3(a) and shall in no event begin providing such information was not previously provided to Purchaser or its Representatives, and (ii) engage engaging in or otherwise participate in such discussions or negotiations with the Person or group prior to providing such notice.
(d) For purposes of Persons making suchthis Agreement:
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, (a) Company shall not and shall cause each of the Company its Subsidiaries and their directors, officers and employees not to, and shall use and cause its Subsidiaries to use their reasonable best efforts to cause their respective other Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VII, directly or indirectly, (ai) solicit, initiate, facilitate endorse, or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regardinginquiry, proposal or offer with respect to, or the making of or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer (whether firm or hypothetical) that constitutes, or could is reasonably be expected likely to lead to, a to any Company Takeover Acquisition Proposal, (bii) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection or data with respect to, any Company Takeover Acquisition Proposal, (iii) approve or recommend any Company Acquisition Proposal, or otherwise cooperate with (iv) approve or assist or participate inrecommend, or facilitate propose publicly to approve or knowingly encourage recommend, or execute or enter into, any such inquiriesletter of intent, proposalsmemorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (each, a “Company Alternative Acquisition Agreement”). Company shall, and shall cause each of its Subsidiaries and the Representatives of Company and its Subsidiaries to, (A) immediately cease and cause to be terminated all existing discussions or negotiations or with any effort or attempt Person conducted heretofore with respect to make a any Company Takeover Acquisition Proposal, (cB) grant request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) not terminate, waive, amend, release or modify any waiver, amendment or release of or under, or fail to enforce, any confidentiality, standstill or similar agreement (or any confidentiality, standstill or similar provision of any other contractconfidentiality or standstill agreement relating to any Company Acquisition Proposal to which it or any of its Affiliates or Representatives is a party, and shall enforce the provisions of any such agreement. Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) Company receives an unsolicited written Company Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Company Acquisition Proposal was not the result of a material violation of this Section 5.3(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Company Acquisition Proposal constitutes or is reasonably likely to result in to a Company Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (dy) of this Section 5.3(a) would violate its fiduciary duties under applicable Law, then Company may (and may authorize its Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and its Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser prior to or concurrently with the time it is provided to such Person, (y) participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal.
(b) Neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Purchaser) or refuse to make the Company Recommendation, or (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Company Acquisition Proposal (each such action set forth in this Section 5.3(b)(i) being referred to herein as a “Company Adverse Recommendation Change”), or (ii) cause or permit Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, acquisition option agreement, joint venture agreement, partnership agreement or other contract providing foragreement (each, relating a “Company Alternative Acquisition Agreement”) constituting or related to, or which is intended to or in connection with is reasonably likely to result in, any Company Takeover Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to a Company Takeover Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to an existing or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representativesa confidentiality agreement permitted by the terms of Section 5.3(a).
5.3.2 ). Notwithstanding anything to the contrary contained hereinforegoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or Board may, if the Company Board determines in good faith (after consultation with outside counsel) that the failure to do so would violate its fiduciary duties under applicable Law, taking into account all adjustments to the terms of this Agreement that may be offered by Purchaser pursuant to this Section 5.3(b), make a Company Adverse Recommendation Change; provided, that Company shall not make any Company Adverse Recommendation Change in response to a Company Acquisition Proposal unless (A) Company shall not have breached this Section 5.3 in any material respect and (B) if and only if:
(i) within three (3) Business Days after notice to Purchaser of its Representatives receives receipt of a bona fide unsolicited Company Takeover Acquisition Proposal from any Person or group pursuant to Section 5.3(c) of Persons, which Company Takeover Proposal this Agreement (that did not result from any a breach of this Section 5.3), then Company and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with outside counsel and its independent financial advisors and outside legal counsel, advisor) that such Company Takeover Acquisition Proposal constitutesis, or is reasonably expected likely to lead toresult in, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Superior Proposal has been made and their respective Representatives; provided that has not been withdrawn and continues to be a Company shall (subject Superior Proposal after taking into account all adjustments to the terms of the Company Confidentiality Agreementthis Agreement that may be offered by Purchaser pursuant to this Section 5.3;
(ii) promptly within three (and in any event within 24 hours3) make available Business Days after notice to Purchaser of receipt of a Company Acquisition Proposal pursuant to Section 5.3(c) of this Agreement, Company shall give Purchaser at least ten (through an electronic data room or otherwise10) Business Days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Company Superior Proposal, including the identity of the party making such Company Superior Proposal), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance contemporaneously provides an unredacted copy of the relevant proposed transaction agreements with the applicable provisions of Section 9.8party making such Company Superior Proposal) to Purchaser; (iii) prior to effecting such Company Adverse Recommendation Change, of the availability of, any written confidential or non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its RepresentativesCompany negotiates, and (ii) engage causes its Representatives to negotiate, in or otherwise participate in discussions or negotiations good faith with Purchaser during such notice period to the Person or group extent Purchaser wishes to negotiate, to enable Purchaser to revise the terms of Persons making suchthis Agreement such that it would cause such Company Superior Proposal to no longer constitute a Company Superior Proposal; and
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3Company shall not, and will cause its subsidiaries, and its and its subsidiaries’ respective officers, directors, affiliates, employees, agents and representatives (including any investment banker, attorney, accountant or other advisor or representative retained by, or otherwise working on behalf of, Company shall not and shall cause each or any of the Company Subsidiaries and their Representatives not to, during the period from its subsidiaries whether on the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Article VIIhereof or any time thereafter) (collectively, “Representatives”) not to directly or indirectly, : (ai) solicit, initiate, seek, knowingly encourage, knowingly facilitate or knowingly encourage induce any Acquisition Proposal (including by way of furnishing information) as defined in Section 6.5(f)(i)), any inquiries regardinginquiry with respect to any Acquisition Proposal, or the making of making, submission or announcement of, any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Acquisition Proposal, (bii) engage or enter into, continue participate or otherwise participate engage in any discussions or negotiations regarding, or furnish to any other Person person any nonpublic information in connection with any Company Takeover Proposalrespect to, or otherwise cooperate with or assist or participate in, or facilitate or knowingly encourage take any such inquiries, proposals, discussions or negotiations or other action (including granting any effort or attempt to make person a Company Takeover Proposal, (c) grant any waiver, amendment waiver or release of or under, or fail to enforce, under any confidentiality, standstill or similar agreement (with respect to any class of equity security of Company or any confidentialityof its subsidiaries, standstill other than as contemplated by this Agreement) to facilitate, any Acquisition Proposal, any inquiry with respect to any Acquisition Proposal or similar provision the making, submission or announcement of any proposal that constitutes or would reasonably be expected to lead to, any Acquisition Proposal (other contractthan the notification of third parties as to the existence of these provisions), (iii) approve, endorse or recommend any Acquisition Proposal with respect to Company or any of its subsidiaries, or (div) enter into any letter of intent, memorandum of understandingintent or similar document or any contract, agreement in principle, merger agreement, acquisition agreement or other contract providing for, commitment (whether binding or not) contemplating or otherwise relating to or in connection with any Company Takeover Acquisition Proposal or any proposal transaction contemplated thereby. Company shall immediately cease, and shall cause its subsidiaries and Representatives to immediately cease, any and all existing activities, discussions or offer that could reasonably be expected negotiations with any third parties conducted heretofore with respect to lead any Acquisition Proposal and, upon Acquiror’s request, shall request the prompt return or destruction of all confidential information previously furnished to a Company Takeover Proposalany person with which Company, its subsidiaries or Representatives have engaged in any such activities within the twelve (12) month period preceding the date of this Agreement. Company shall, and shall cause each of the Company Subsidiaries its subsidiaries and each of its Representatives to, use commercially reasonable efforts to enforce (and the Company Subsidiaries' Representatives to will not waive any provisions of) any confidentiality or standstill agreement (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to an existing or potential Company Takeover Proposal as of the date of this Plan of Merger, (ii) request promptly thereafter that any Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior to the date hereof in connection with its consideration of a Company Takeover Proposal promptly return or destroy all confidential or non-public information concerning Company or any of the Company Subsidiaries delivered or made available to such Person or its Representatives by Company, the Company Subsidiaries or any Representatives thereof, and any summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iiisimilar agreement) immediately upon execution of this Plan of Merger, terminate all physical and electronic data room access previously granted to any Person or its Representatives (other than Purchaser and its Representatives).
5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, which Company or any of its Representatives receives subsidiaries is a bona fide unsolicited Company Takeover Proposal from any Person or group of Persons, which Company Takeover Proposal did not result from any breach of this Section 5.3, then Company and its Representatives may (a) contact such Person or group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject to the terms of the Company Confidentiality Agreement) promptly (and in any event within 24 hours) make available to Purchaser (through an electronic data room or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written confidential or non-public information that is provided party relating to any such Person Acquisition Proposal. Any breach of the foregoing provisions of this subsection by any of Company’s subsidiaries or group of Persons or their respective Representatives, if such information was not previously provided Representatives shall be deemed to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchbe a breach by Company.
Appears in 1 contract
Samples: Merger Agreement (Insightful Corp)
