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 (a) Company and its Subsidiaries shall immediately cease, and Company and its Subsidiaries shall cause each of their respective representatives to immediately cease, any discussions or negotiations with any parties conducted prior to the date of this Agreement with respect to an Acquisition Proposal. Except as specifically permitted by this Section 5.35.09, after the execution and delivery of this Agreement, Company and its directors, executive officers and Subsidiaries shall not not, and Company shall cause each of the Company Subsidiaries its and their Representatives its Subsidiaries’ 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 (including by way of furnishing information) any inquiries regardinginquiry with respect to, or the making of of, any proposal or offer that constitutes, constitutes or could reasonably be expected to lead to, a Company Takeover to an Acquisition Proposal, (ii) participate in any negotiations regarding an Acquisition Proposal with, or furnish any nonpublic information relating to an Acquisition Proposal to, any Person that has made or, to the Knowledge of Company, is considering making an Acquisition Proposal, or (iii) engage in discussions regarding an Acquisition Proposal with any Person that has made, or, to Company’s Knowledge, is considering making, an Acquisition Proposal, except to notify such Person of the existence of the provisions of this Section 5.09.
(b) Notwithstanding Section 5.09(a), if, prior to the time Requisite Company Shareholder Approval is obtained, Company receives a written and unsolicited Acquisition Proposal that the board of directors of Company determines in good faith (after consultation with its financial advisors and outside counsel) constitutes or is reasonably likely to lead to a Superior Proposal, Company may take the following actions: (1) furnish nonpublic information with respect to Company and its Subsidiaries to the Person making such 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 confidentiality agreement by and between Company and Buyer dated as of December 22, 2015, 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 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 Superior Proposal. Company promptly (and in any event within 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 an 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 an 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 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 5.09(d), 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 of any other contract) modify), in a manner adverse to Buyer, its recommendation referred to in Section 5.04, or (dii) approve or recommend (or publicly propose to approve or recommend) any Acquisition Proposal. Except as set forth in Section 5.09(d), Company shall not, and its board of directors shall not allow Company to, and Company shall not allow any of Company’s Subsidiaries to, 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 permitted under Section 5.09(b)) relating to any Superior Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the board of directors of Company may, prior to the time the Requisite Company Shareholder Approval is obtained, in response to a Superior Proposal which did not result from a breach of Section 5.09(a) or (b), (i) make a Change in Recommendation and/or (ii) terminate this Agreement pursuant to Section 7.01 (and concurrently with such termination cause Company to enter into a definitive agreement with respect to the Superior Proposal), in each case of clauses (i) or (ii), if the board of directors of Company has determined in good faith, after consulting with its outside counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided that the board of directors may not take any such action in connection with an Acquisition Proposal unless (1) the board of directors has determined that such Acquisition Proposal constitutes a Superior Proposal, (2) prior to terminating this Agreement pursuant to Section 7.01(g), Company provides prior written notice to Buyer at least four (4) Business Days in advance (the “Notice Period”) of its intention to take such action, which notice shall specify all material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal and copies of any Company Takeover Proposal documents or correspondence evidencing such Superior Proposal), and any proposal or offer that could reasonably be expected material modifications to lead to a Company Takeover Proposal. any of the foregoing, (3) during the Notice Period Company shall, and shall cause each its financial advisors and outside counsel to, negotiate with Buyer in good faith should Buyer propose to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the good faith judgment of Company’s board of directors) a Superior Proposal and (4) such Superior Proposal continues to constitute (in the good faith judgment of Company’s board of directors) a Superior Proposal after taking into account any such amendments that Buyer shall have agreed to make prior to the end of the Notice Period.
(e) Nothing contained in this Section 5.09 shall prohibit Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to from (i) immediately upon execution of this Plan of Merger, cease making any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect disclosure 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’s shareholders if, after consultation with its independent financial advisors and outside legal counsel, Company determines that such disclosure would be required under applicable Law; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed to be a Change in Recommendation unless it is limited to a stop, look, and listen communication or Company’s board of directors reaffirms the recommendation referred to in Section 5.04 in such disclosure and does not recommend that Company Takeover Proposal constitutesshareholders tender their shares, 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 informing any Person of the existence of the provisions contained in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchthis Section 5.09.
Appears in 1 contract
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 representatives to immediately cease, any discussions or negotiations with any parties conducted prior to the date hereof with respect to an Acquisition Proposal. Except as specifically permitted by this Section 5.35.09, after the execution and delivery of this Agreement, Company and its directors, executive officers and Subsidiaries shall not not, and Company shall cause each of the Company Subsidiaries its and their Representatives its Subsidiaries’ 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 (including by way of furnishing information) any inquiries regardinginquiry with respect to, or the making of of, any proposal or offer that constitutes, constitutes or could reasonably be expected to lead to, a Company Takeover to an Acquisition Proposal, (ii) participate in any negotiations regarding an Acquisition Proposal with, or furnish any nonpublic information relating to an Acquisition Proposal to, any Person that has made or, to the Knowledge of Company, is considering making an Acquisition Proposal, or (iii) engage in discussions regarding an Acquisition Proposal with any Person that has made, or, to Company’s Knowledge, is considering making, an Acquisition Proposal, except to notify such Person of the existence of the provisions of this Section 5.09.
(b) Notwithstanding Section 5.09(a), if, prior to the time Requisite Company Stockholder Approval is obtained, Company receives a written and unsolicited Acquisition Proposal that the board of directors of Company determines in good faith (after consultation with its financial advisors and outside counsel) constitutes or is reasonably likely to lead to a Superior Proposal, Company may take the following actions: (1) furnish nonpublic information with respect to Company and its Subsidiaries to the Person making such 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 confidentiality agreement by and between Company and Buyer dated as of November 13, 2015, 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 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 Superior Proposal. Company promptly (and in any event within 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 an 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 an Acquisition Proposal. Company shall, thereafter, keep Buyer reasonably 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 48 hours) of the status of any such inquiries, proposals, discussions or negotiations or Acquisition Proposal (including any effort or attempt material change to make a Company Takeover Proposal, the terms thereof).
(c) grant any waiverExcept as set forth in Section 5.09(d), amendment the board of directors of Company shall not (i) withhold, withdraw or release of modify (or underpublicly propose to withhold, withdraw or modify), in a manner adverse to Buyer, its recommendation referred to in Section 5.04, or fail to enforce, any confidentiality, standstill (ii) approve or similar agreement recommend (or publicly propose to approve or recommend) any confidentialityAcquisition Proposal. Except as set forth in Section 5.09(d), standstill or similar provision Company shall not, and its board of directors shall not allow Company to, and Company shall not allow any other contract) or (d) of Company’s Subsidiaries to, enter into any letter of intent, memorandum of understanding, agreement in principle, merger acquisition agreement, acquisition merger agreement or other contract providing for, agreement (except for confidentiality agreements permitted under Section 5.09(b)) relating to any Superior Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the board of directors of Company may, prior to the time the Requisite Company Stockholder Approval is obtained, in response to a Superior Proposal which did not result from a breach of Section 5.09(a) or (b), (i) make a Change in Recommendation and/or (ii) terminate this Agreement pursuant to Section 7.01 (and concurrently with such termination cause Company to enter into a definitive agreement with respect to the Superior Proposal), in each case of clauses (i) or (ii), if the board of directors of Company has determined in good faith, after consulting with its outside counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided that the board of directors may not take any such action in connection with an Acquisition Proposal unless (1) the board of directors has determined that such Acquisition Proposal constitutes a Superior Proposal, (2) prior to terminating this Agreement pursuant to Section 7.01(g), Company provides prior written notice to Buyer at least four Business Days in advance (the “Notice Period”) of its intention to take such action, which notice shall specify all material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal and copies of any Company Takeover Proposal documents or correspondence evidencing such Superior Proposal), and any proposal or offer that could reasonably be expected material modifications to lead to a Company Takeover Proposal. any of the foregoing, (3) during the Notice Period Company shall, and shall cause each its financial advisors and outside counsel to, negotiate with Buyer in good faith should Buyer propose to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the good faith judgment of Company’s board of directors) a Superior Proposal and (4) such Superior Proposal continues to constitute (in the good faith judgment of Company’s board of directors) a Superior Proposal after taking into account any such amendments that Buyer shall have agreed to make prior to the end of the Notice Period.
(e) Nothing contained in this Section 5.09 shall prohibit Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to from (i) immediately upon execution of this Plan of Merger, cease making any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect disclosure 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’s stockholders if, after consultation with its independent financial advisors and outside legal counsel, Company determines that such disclosure would be required under applicable Law; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed to be a Change in Recommendation unless it is limited to a stop, look and listen communication or Company’s board of directors reaffirms the recommendation referred to in Section 5.04 in such disclosure and does not recommend that Company Takeover Proposal constitutesstockholders tender their shares, 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 informing any Person of the existence of the provisions contained in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchthis Section 5.09.
Appears in 1 contract
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3, Company shall will not and shall will 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 or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or 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 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 shallwill, and shall will 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, Merger terminate all physical and electronic data room 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 written Company Takeover Proposal from any Person or group of Persons, which Company Takeover Proposal did not result from any breach of this Section 5.35.3.1, 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 unclearmay, 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, constitutes or is reasonably expected likely to lead to, to a Company Superior Proposal (ia) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company its Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall will (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 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 (iib) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchsuch Company Takeover Proposal and their respective
Appears in 1 contract
Samples: Merger Agreement (Choiceone Financial Services Inc)
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 (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 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.
Appears in 1 contract
No Solicitation by Company. 5.3.1 (a) Except as specifically permitted by otherwise provided in this Section 5.34.3, 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 date of termination of this Plan Agreement, neither Company, nor any of Merger in accordance with Article VIIits Subsidiaries or any of the officers, directly directors, agents, or indirectlyrepresentatives of it or its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) shall (ai) solicit, initiate, facilitate initiate or knowingly encourage (including by way of furnishing information) ), or take any other action designed to facilitate, any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, which constitutes a Company Takeover ProposalProposal (as defined in this Section 4.3), (bii) engage or enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person information in connection with regarding 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 (diii) 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 regarding any Company Takeover Proposal or (iv) make or authorize any proposal statement, recommendation or offer that could reasonably be expected to lead to a solicitation in support of any Company Takeover Proposal. Company shall, If and shall cause each of only to the Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to extent that (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 MergerStockholders Meeting shall not have occurred, (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 of Company Board of Directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that it is necessary to do so in order to comply with its fiduciary duties to Company’s stockholders under applicable law in light of a bona fide Company Takeover Proposal that has not been withdrawn, (iii) such Company Takeover Proposal constituteswas not solicited by it and did not otherwise result from a breach of this Section 4.3(a), or is reasonably expected and (iv) Company provides prior written notice to lead toParent of its decision to take such action, a Company Superior Proposal shall be permitted to (iA) furnish, pursuant to an Acceptable Company Confidentiality Agreement, furnish information (including non-public information) with respect to Company and the Company any of its Subsidiaries to such Person pursuant to a customary confidentiality agreement consistent with the Person or group of Persons who has made such confidentiality agreement dated December 12, 2003 between Company Takeover Proposal and their respective Representatives; provided that Company shall Parent (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 (iiB) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchin
Appears in 1 contract
Samples: Merger Agreement (Partners Trust Financial Group Inc)
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 representatives to immediately cease, any discussions or negotiations with any parties conducted prior to the date hereof with respect to an Acquisition Proposal. Except as specifically permitted by this Section 5.35.09, after the execution and delivery of this Agreement, Company and its directors, executive officers and Subsidiaries shall not not, and Company shall cause each of the Company Subsidiaries its and their Representatives its Subsidiaries’ 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 (including by way of furnishing information) any inquiries regardinginquiry with respect to, or the making of of, any proposal or offer that constitutes, constitutes or could reasonably be expected to lead to, a Company Takeover to an Acquisition Proposal, (ii) participate in any negotiations regarding an Acquisition Proposal with, or furnish any nonpublic information relating to an Acquisition Proposal to, any Person that has made or, to the Knowledge of Company, is considering making an Acquisition Proposal, or (iii) engage in discussions regarding an Acquisition Proposal with any Person that has made, or, to Company’s Knowledge, is considering making, an Acquisition Proposal, except to notify such Person of the existence of the provisions of this Section 5.09.
(b) Notwithstanding Section 5.09(a), if, prior to the time Requisite Company Stockholder Approval is obtained, Company receives a written and unsolicited Acquisition Proposal that the board of directors of Company reasonably believes to be credible, and which the board of directors of the Company determines in good faith (after consultation with its financial advisors and outside counsel) constitutes or is reasonably likely to lead to a Superior Proposal, Company may take the following actions: (1) furnish nonpublic information with respect to Company and its Subsidiaries to the Person making such 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 confidentiality agreement by and between Company and Buyer dated as of May 21, 2014, 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 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 Superior Proposal. Company promptly (and in any event within 48 hours) shall advise Buyer orally and in writing of the receipt of (i) any proposal that constitutes or could reasonably be expected to lead to an 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 expected to be related to an Acquisition Proposal. Company shall, thereafter, keep Buyer reasonably 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 48 hours) of the status of any such inquiries, proposals, discussions or negotiations or Acquisition Proposal (including any effort or attempt material change to make a Company Takeover Proposal, the terms thereof).
(c) grant any waiverExcept as set forth in Section 5.09(d), amendment the board of directors of Company shall not (i) withhold, withdraw or release of modify (or underpublicly propose to withhold, withdraw or modify), in a manner adverse to Buyer, its recommendation referred to in Section 5.04, or fail to enforce, any confidentiality, standstill (ii) approve or similar agreement recommend (or publicly propose to approve or recommend) any confidentialityAcquisition Proposal. Except as set forth in Section 5.09(d), standstill or similar provision Company shall not, and its board of directors shall not allow Company to, and Company shall not allow any other contract) or (d) of Company’s Subsidiaries to, enter into any letter of intent, memorandum of understanding, agreement in principle, merger acquisition agreement, acquisition merger agreement or other contract providing for, agreement (except for confidentiality agreements permitted under Section 5.09(b)) relating to any Superior Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the board of directors of Company may, prior to the time the Requisite Company Stockholder Approval is obtained, in response to a Superior Proposal which did not result from a breach of Section 5.09(a) or (b), (i) make a Change in Recommendation and/or (ii) terminate this Agreement pursuant to Section 7.01 (and concurrently with such termination cause Company to enter into a definitive agreement with respect to the Superior Proposal), in each case of clauses (i) or (ii), if the board of directors of Company has determined in good faith, after consulting with its outside counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided that the board of directors may not take any such action in connection with an Acquisition Proposal unless (1) the board of directors has determined that such Acquisition Proposal constitutes a Superior Proposal, (2) prior to terminating this Agreement pursuant to Section 7.01(g), Company provides prior written notice to Buyer at least four Business Days in advance (the “Notice Period”) of its intention to take such action, which notice shall specify all material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal and copies of any Company Takeover Proposal documents or correspondence evidencing such Superior Proposal), and any proposal or offer that could reasonably be expected material modifications to lead to a Company Takeover Proposal. any of the foregoing, (3) during the Notice Period Company shall, and shall cause each its financial advisors and outside counsel to, negotiate with Buyer in good faith should Buyer propose to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute (in the good faith judgment of Company’s board of directors) a Superior Proposal and (4) such Superior Proposal continues to constitute (in the good faith judgment of Company’s board of directors) a Superior Proposal after taking into account any such amendments that Buyer shall have agreed to make prior to the end of the Notice Period.
(e) Nothing contained in this Section 5.09 shall prohibit Company Subsidiaries and each of its and the Company Subsidiaries' Representatives to from (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions complying with its disclosure obligations under U.S. federal or negotiations state law with any Person that may be ongoing with respect regard to an existing Acquisition Proposal, including Rule 14a-9, 14d-9 or potential Company Takeover Proposal as of 14e-2 promulgated under the date of this Plan of MergerExchange Act, (ii) request promptly thereafter that or making any Person furnished with confidential or non-public information concerning the Company or any of the Company Subsidiaries on or prior disclosure 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’s stockholders if, after consultation with its independent financial advisors and outside legal counsel, Company determines that such disclosure would be required under applicable Law; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed to be a Change in Recommendation unless it is limited to a stop, look and listen communication or Company’s board of directors reaffirms the recommendation referred to in Section 5.04 in such disclosure and does not recommend that Company Takeover Proposal constitutesstockholders tender their shares, 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 informing any Person of the existence of the provisions contained in or otherwise participate in discussions or negotiations with the Person or group of Persons making suchthis Section 5.09.
Appears in 1 contract
Samples: Merger Agreement (Peoples Federal Bancshares, Inc.)
No Solicitation by Company. 5.3.1 Except as specifically permitted by this Section 5.3(a) Company will not, Company shall and will not and shall cause each of the Company Subsidiaries and their authorize, direct or knowingly permit its 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 or knowingly encourage or induce the making, submission or announcement of any Company Takeover Proposal, (including by way of furnishing informationii) participate in any inquiries discussions or negotiations with any person regarding, or the making of furnish to any proposal or offer that constitutesperson any information with respect to, or could take any other action that would reasonably be expected to facilitate any inquiry or proposal that constitutes or would reasonably be expected to lead to, a any Company Takeover Proposal, (biii) engage authorize, approve or recommend any Company Takeover Proposal or (iv) enter intointo any letter of intent or similar document or any Contract accepting or providing for any Company Takeover Proposal; provided, continue however, that nothing in this Section 6.4 or elsewhere in this Agreement shall prohibit Company's board of directors from complying with Rule 14e-2 under the Exchange Act with regard to a tender or exchange offer not arising out of, related to or otherwise participate by virtue of a violation of this Section 6.4; and provided, further, that nothing in this Section 6.4 or elsewhere in this Agreement shall prohibit Company, before the adoption of this Agreement by the shareholders of Company, from furnishing information regarding Company to, entering into negotiations or discussions with, or entering into an agreement relating to a Company Takeover Proposal with, any person in response to a Company Takeover Proposal made, submitted or announced by such person (and not withdrawn) to the extent (1) such Company Takeover Proposal is not attributable to a material breach of this Section 6.4(a); (2) the board of directors of Company concludes in good faith, consistent with advice of outside legal counsel, that failure to take such action would likely constitute a breach of the fiduciary obligations of the board of directors of Company to Company's shareholders under applicable Law; (3) the board of directors of Company concludes, in good faith, consistent with the advice of the Company's financial advisors that such Company Takeover Proposal is reasonably likely to lead to a Company Superior Proposal; (4) prior to furnishing any such information to, or entering into discussions or negotiations regardingwith, such person, Company gives Parent written notice of the identity of such person, the material terms and conditions of such Company Takeover Proposal and Company's intention to furnish information to, or furnish enter into discussions or negotiations with, such person; (5) Company receives from such person an executed confidentiality agreement which shall not in any way restrict Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person by or on behalf of Company and other terms no less favorable to Company than those set forth in the Confidentiality Agreement; and (6) contemporaneously with furnishing any such information to such person, Company furnishes such information to Parent (to the extent that such information has not been previously furnished by Company to Parent).
(b) Company and its Representatives shall immediately cease and cause to be terminated and not resumed any and all existing discussions, negotiations, exchanges of information and other activities with respect to any Company Takeover Proposal pending as of the date of this Agreement. Promptly following the execution and delivery of this Agreement, Company shall (i) inform each of its directors and officers and financial, legal, accounting and other Person advisors retained or involved in the transaction contemplated by this Agreement of the obligations undertaken in this Section 6.4 and in the Confidentiality Agreement and (ii) as soon as reasonably practicable, request each person that has heretofore executed a confidentiality or non-disclosure agreement in connection with its consideration of acquiring Company or any of its Subsidiaries to return to Company or otherwise dispose of all confidential information furnished to such person, by or on behalf of Company or any of its Subsidiaries, during the one-year period prior to the date of this Agreement in connection with such person's consideration of acquiring or engaging in a merger or other business combination transaction with Company or any of its Subsidiaries. Company shall immediately notify Parent if any proposals or offers constituting a Company Takeover Proposal are received by, any non-public information in connection with any Company Takeover ProposalProposal is requested from, 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 respect to a Company Takeover Proposal. Proposal are sought to be initiated or continued with, Company's officers or directors or other individuals involved on behalf of Company shall, and shall cause each in the negotiation of the Company Subsidiaries and each Transactions contemplated by this Agreement, or, to the knowledge of its the foregoing Persons, any of Company's other Representatives, indicating, in connection with such notice, the name of the person making the inquiry, proposal or offer and the Company Subsidiaries' Representatives to material terms and conditions of any such proposals or offers. Thereafter (i) immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations Company shall provide Parent 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, true 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 complete copy of such Company Takeover Proposal that the Company Board of Directors determines or communication (if it is in good faith to be ambiguous or unclear, and (bwriting) 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 Company shall otherwise keep Parent informed, on a current basis, with respect to the status and material terms of any such proposal or otherwise participate in discussions offer and the status of any such negotiations or negotiations with the Person or group of Persons making suchdiscussions.
Appears in 1 contract
Samples: Merger Agreement (Chell Group 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)
