No Solicitation by Parent. (a) Subject to the provisions of this Section 5.6, from the date of this Agreement until the earlier of the Effective Time and the Termination Date, Parent agrees that it shall not, and shall cause its Subsidiaries and its and their respective directors and officers not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or knowingly facilitate any inquiry regarding, or the making or submission of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, or result in, a Parent Alternative Proposal, (ii) engage in, knowingly encourage, continue or otherwise participate in any discussions or negotiations with any Person regarding Parent Alternative Proposal, or any communications regarding or any inquiry, proposal or offer that would reasonably be expected to lead to, or result in, a Parent Alternative Proposal (except to notify such Person that the provisions of this Section 5.6 prohibit any such discussions or negotiations), (iii) furnish any non-public information relating to Parent or its Subsidiaries in connection with or for the purpose of facilitating a Parent Alternative Proposal or any inquiry, proposal, offer or indication of interest that would reasonably be expected to lead to, or result in, a Parent Alternative Proposal and request the prompt return or destruction of any confidential information provided to any third party in connection with any Parent Alternative Proposal; (iv) recommend or enter into any other letter of intent, memorandum of understandings, agreement in principle, option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership agreement or other similar agreement with respect to a Parent Alternative Proposal (except for confidentiality agreements permitted under Section 5.6(b)); (v) approve any transaction under, or any third party becoming an “interested stockholder” under Section 203 of the DGCL (or similar Takeover Statute applicable to Parent under Canadian Law); or (vi) adopt, approve, endorse, authorize agree or publicly propose to adopt, approve, endorse or authorize to do any of the foregoing or otherwise knowingly facilitate any effort or attempt to make a Parent Alternative Proposal. (b) Notwithstanding anything in this Section 5.6 to the contrary, at any time prior to, but not after, obtaining the Parent Shareholder Approval, if Parent receives a bona fide, unsolicited Parent Alternative Proposal in writing that did not result from a breach of this Section 5.6 (which Parent Alternative Proposal is not withdrawn), Parent and its Representatives may contact the third party making such Parent Alternative Proposal to clarify the terms and conditions thereof. If the Parent Board determines in good faith after consultation with Parent’s outside legal counsel and financial advisors that such Parent Alternative Proposal constitutes a Parent Superior Proposal or would reasonably be expected to result in a Parent Superior Proposal, then Parent may take the following actions: (i) furnish nonpublic information to the third party making such Parent Alternative Proposal (including its Representatives, including its equity and debt financing sources) in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has executed a confidentiality agreement with Parent (a copy of which shall be provided to the Company within 24 hours of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, prior to or substantially concurrently with the time such non-public information is provided or made available to such third party, any non-public information furnished to such third party that was not previously furnished to the Company; provided, however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. Parent shall promptly (and in any event within 24 hours) notify the Company in writing if: (i) any inquiries, proposals or offers with respect to a Parent Alternative Proposal are received by Parent or any of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, to the Knowledge of Parent, has been or is reasonably likely to have been made in connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions thereof (including the name of the applicable third party and, complete copies of any written requests, proposals or offers and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall keep the Company fully informed on a current basis of any material developments regarding any Parent Alternative Proposals or any material change to the terms of any such Parent Alternative Proposal and any material change to the status of any such discussions or negotiations with respect thereto. (c) Except as expressly permitted by Section 5.6(d), the Parent Board, including any committee thereof, shall not (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, the Parent Recommendation; (ii) fail to include the Parent Recommendation in the Management Information Circular that is mailed by Parent to the shareholders of Parent; (iii) if any Parent Alternative Proposal that is structured as a tender offer or exchange offer for the outstanding Parent Common Shares is commenced (other than by the Company or an Affiliate of the Company), fail to recommend and publicly announce, within ten (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by its shareholders; (iv) approve, adopt, recommend or declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal; (v) fail to publicly reaffirm the Parent Recommendation, within ten (10) Business Days after a Parent Alternative Proposal (or material modification thereto) is first publicly announced by Parent or the person making such Parent Alternative Proposal (or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days); (vi) approve, adopt or recommend, or declare advisable or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in and entered into compliance with Section 5.6(b)) with respect to any Parent Alternative Proposal; (vii) exempt any person other than the Company from any Takeover Statute or approve or authorize, or cause or permit Parent any of its Subsidiaries to enter into a Parent Acquisition Agreement, or (viii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”). (d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(e), prior to obtaining the Parent Shareholder Approval, (i) the Parent Board may make a Parent Change of Recommendation in response to a Parent Intervening Event if the Parent Board has determined, in good faith after consultation with the Parent’s outside legal counsel, that the failure to take such action would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to the Parent’s stockholders under applicable Law, or (ii) the Parent Board may, in response to a Parent Superior Proposal, (i) make a Parent Change of Recommendation and/or (ii) cause Parent to terminate this Agreement pursuant to Section 7.1(d)(ii) in order to enter into a Parent Acquisition Agreement that did not result from a breach of this Section 5.6 which Parent Acquisition Agreement the Parent Board determines, in good faith after consultation with Parent’s outside legal counsel and financial advisors, is a Parent Superior Proposal, but only if the Parent Board has determined in good faith after consultation with Parent’s outside legal counsel, that the failure make such a Parent Change of Recommendation and / or terminate this Agreement to enter into a Parent Acquisition Agreement providing for a Parent Superior Proposal would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to Parent’s shareholders under applicable Law. (e) Prior to Parent taking any action permitted under (i) Section 5.6(d)(i) in response to a Parent Intervening Event, the Parent shall provide Company with ten (10) Business Days’ prior written notice advising Company it intends to effect a Parent Change of Recommendation and specifying, in reasonable detail, the reasons therefor, and during such ten (10) Business Day period, the Parent shall cause its Representatives (including its executive officers) to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Parent Change of Recommendation and at the end of such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement proposed by Company), or (ii) Section 5.6(d)(ii) in response to a Parent Superior Proposal, (A) Parent shall provide the Company with five (5) Business Days’ prior written notice (a “Parent Superior Proposal Notice”) advising the Company that the Parent Board intends to take such action, which Parent Superior Proposal Notice shall include a description of the terms and conditions of the Parent Superior Proposal that is the basis for the proposed action of the Parent Board, the identity of the Person making the Parent Superior Proposal and a copy of any proposed definitive agreement for such Parent Superior Proposal, if any, and (B) Parent shall have negotiated in good faith with the Company and its Representatives and shall have directed its financial advisors and outside legal counsel to engage in good faith negotiations with Company and its Representatives (to the extent the Company wishes to negotiate) to enable the Company to make such amendments to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation or terminate this Agreement in connection with such Parent Superior Proposal, and (C) at the end of such five (5) Business Day period, the Parent Board again makes the fiduciary determination under Section 5.6(d). With respect to Section 5.6(e)(ii), any material modifications to the terms of the Parent Superior Proposal (including any change in the amount or form of consideration) after a Parent Superior Proposal Notice shall require a new Parent Superior Proposal Notice by Parent to the Company in compliance with clause (A), and shall commence a new notice period pursuant clause (A) of three (3) Business Days. (f) Nothing contained in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including taking and disclosing to its shareholders a position a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids of the Canadian Securities Administrators and similar provisions under Canadian Securities Laws relating to the provision of directors’ circulars in respect of a Parent Alternative Proposal. For the avoidance of doubt, this Section 5.6(f) shall not permit the Company Board to make (or otherwise modify the definition of) a Company Change of Recommendation except to the extent expressly permitted by Section 5.6(d). (g) Further to Section 5.6(a), Parent shall (and shall cause its Subsidiaries and its and their respective directors and officers and shall use its reasonable best efforts to cause its other Representatives to) promptly terminate any existing discussions and negotiations conducted heretofore with any Person (other than the Company, Parent or any of their respective Affiliates or Representatives) with respect to any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result in a Parent Alternative Proposal. Further, Parent shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning Parent and any of its Subsidiaries and provide prompt written confirmation thereof.

Appears in 2 contracts

Samples: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)

No Solicitation by Parent. (a) ~~Subject to the provisions of~~ Except as expressly permitted by this Section ~~5.6~~5.04, from the date of this Agreement until the ~~earlier of the~~ First Effective Time ~~and~~ or, if earlier, the ~~Termination Date~~valid termination of this Agreement in accordance with Section 9.01, Parent ~~agrees that it~~ shall not, ~~and~~ shall cause its Subsidiaries ~~and its and their respective directors and officers~~ not ~~to,~~ to and shall use its reasonable best efforts to cause its and ~~its Subsidiaries’ other~~ their respective Representatives not to, directly or indirectly, : (i) ~~solicit~~initiate, ~~initiate~~ solicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, or the making of, any inquiry regarding, or ~~the making~~ any proposal or ~~submission of any proposal,~~ offer ~~or indication of interest~~ that constitutes, or would reasonably be expected to result in or lead to, ~~or result in, a Parent Alternative~~ any Acquisition Proposal, ; (ii) engage in~~, knowingly encourage~~, continue or otherwise participate in any negotiations or discussions ~~or negotiations with any Person regarding Parent Alternative Proposal~~concerning, or ~~any communications regarding~~ provide access to its properties, books and records or any inquiry, proposal or offer that would reasonably be expected to lead to, or result in, a Parent Alternative Proposal (except to notify such Person that the provisions of this Section 5.6 prohibit any such discussions or negotiations), (iii) furnish any non-public information relating to Parent or its Subsidiaries in connection with or for the purpose of facilitating a Parent Alternative Proposal or any inquiry, proposal, offer or indication of interest that would reasonably be expected to lead to, or result in, a Parent Alternative Proposal and request the prompt return or destruction of any confidential information ~~provided~~ or data to, any Person relating to any ~~third party in connection with any Parent Alternative Proposal; (iv) recommend~~ proposal, offer, inquiry or ~~enter into any other letter of intent~~request for information that constitutes, memorandum of understandings, agreement in principle, option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership agreement or other similar agreement with respect to a Parent Alternative Proposal (except for confidentiality agreements permitted under Section 5.6(b)); (v) approve any transaction under, or any third party becoming an “interested stockholder” under Section 203 of the DGCL (or similar Takeover Statute applicable to Parent under Canadian Law); or (vi) adopt, approve, endorse, authorize agree or publicly propose to adopt, approve, endorse or authorize to do any of the foregoing or otherwise knowingly facilitate any effort or attempt to make a Parent Alternative Proposal. (b) Notwithstanding anything in this Section 5.6 to the contrary, at any time prior to, but not after, obtaining the Parent Shareholder Approval, if Parent receives a bona fide, unsolicited Parent Alternative Proposal in writing that did not result from a breach of this Section 5.6 (which Parent Alternative Proposal is not withdrawn), Parent and its Representatives may contact the third party making such Parent Alternative Proposal to clarify the terms and conditions thereof. If the Parent Board determines in good faith after consultation with Parent’s outside legal counsel and financial advisors that such Parent Alternative Proposal constitutes a Parent Superior Proposal or would reasonably be expected to result in a Parent Superior Proposal, then Parent may take the following actions: (i) furnish nonpublic information to the third party making such Parent Alternative Proposal (including its Representatives, including its equity and debt financing sources) in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has executed a confidentiality agreement with Parent (a copy of which shall be provided to the Company within 24 hours of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, prior to or substantially concurrently with the time such non-public information is provided or made available to such third partylead to, any ~~non-public information furnished to such third party that was not previously furnished to the Company~~Acquisition Proposal; ~~provided~~(iii) approve, ~~however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company~~ endorse or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. Parent shall promptly (and in any event within 24 hours) notify the Company in writing if: (i) any inquiries, proposals or offers with respect to a Parent Alternative Proposal are received by Parent or any of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, to the Knowledge of Parent, has been or is reasonably likely to have been made in connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions thereof (including the name of the applicable third party and, complete copies of any written requests, proposals or offers and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall keep the Company fully informed on a current basis of any material developments regarding any Parent Alternative Proposals or any material change to the terms of any such Parent Alternative Proposal and any material change to the status of any such discussions or negotiations with respect thereto. (c) Except as expressly permitted by Section 5.6(d), the Parent Board, including any committee thereof, shall not (i) withdraw, withhold, qualify or modifyrecommend, or propose publicly to ~~withdraw~~approve, ~~withhold~~endorse or recommend, ~~qualify or modify, the Parent Recommendation; (ii) fail to include the Parent Recommendation in the Management Information Circular that is mailed by Parent to the shareholders of Parent; (iii) if~~ any Parent Alternative Proposal that is structured as a tender offer or exchange offer for the outstanding Parent Common Shares is commenced (other than by the Company or an Affiliate of the Company), fail to recommend and publicly announce, within ten (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by its shareholdersAcquisition Proposal; (iv) approve, adopt, recommend or declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal; (v) fail to publicly reaffirm the Parent Recommendation, within ten (10) Business Days after a Parent Alternative Proposal (or material modification thereto) is first publicly announced by Parent or the person making such Parent Alternative Proposal (or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days); (vi) approve, adopt or recommend, or declare advisable execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, ~~acquisition agreement~~confidentiality agreement (other than an Acceptable Confidentiality Agreement executed in accordance with Section 5.04(b)(ii)), merger agreement, ~~option~~ acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Proposal; or (v) resolve or agree to do any of the foregoing; provided, that that notwithstanding anything to the contrary in this Agreement, Parent or its Representatives may, (A) in response to an unsolicited inquiry or proposal, seek to clarify the terms and conditions of such inquiry or proposal to determine whether such inquiry or proposal constitutes, or would reasonably be expected to result in or lead to, a Superior Proposal and (B) in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 5.04; provided, further, that it is understood and agreed that any determination or action by Parent or the Parent Board, as applicable, made in accordance with Section 5.04(b), Section 5.04(c), or Section 5.04(d), as applicable, shall not be deemed to be a breach or violation of this Section 5.04(a). Parent also agrees that immediately following the execution of this Agreement it shall, and shall cause each of its Subsidiaries and shall use its reasonable best efforts to cause its and their Representatives to, cease any solicitations, discussions or negotiations with any Person (other than the Company and its Representatives) conducted heretofore in connection with an Acquisition Proposal or any inquiry or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal. Parent also agrees that within three Business Days of the execution of this Agreement, Parent shall instruct each Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement ~~referred~~ in connection with its consideration of an Acquisition Proposal to promptly return or destroy all confidential information furnished to such Person by or on behalf of it or any of its Subsidiaries prior to the date hereof, and Parent shall terminate access to any physical or electronic data room maintained by or on behalf of Parent or any of its Subsidiaries with respect thereto. Parent shall promptly (and in ~~and entered into compliance with Section 5.6(b)~~any event within two Business Days) notify, in writing, the Company of the receipt of any inquiry, proposal, offer or request for information received after the date hereof that constitutes, or would reasonably be expected to result in or lead to, any Acquisition Proposal, which notice shall include the identity of the Person or group of Persons making, such inquiry, proposal, offer or request for information and, with respect to any such proposal or offer, a summary of the material terms of, and an unredacted copy of any proposed definitive agreement, proposal or offer made in writing or, if not in writing, a written description of the material terms and conditions of such proposal or offer (and shall include any other material documents evidencing or specifying the terms of such proposal or offer or, to the extent applicable, inquiry). To the extent Parent ~~Alternative~~ is prohibited by a non-disclosure or confidentiality agreement entered into prior to the date hereof from providing the information set forth in the preceding sentence, Parent shall not be required to provide the Company with the identity of the Person(s) from which such expression of interest, inquiry or proposal was received. Parent shall promptly (and in any event within two Business Days) keep the Company informed of any material developments with respect to any such inquiry, proposal, offer, request for information or Acquisition Proposal (including any changes or proposed changes thereto and copies of any additional material written materials received by Parent, its Subsidiaries or its or their respective Representatives). The Company shall not enter into any confidentiality agreement with any Person after the date of this Agreement that prohibits it from complying with the foregoing obligations. Without limiting the foregoing, it is understood that any violation of the restrictions contained in this Section 5.04 by any of Parent’s Subsidiaries, or any of Parent’s or its Subsidiaries’ respective Representatives made at the direction of Parent, shall be deemed to be a breach of this Section 5.04 by Parent. (b) Notwithstanding anything to the contrary in this Section 5.04, this Agreement shall not prevent Parent or the Parent Board from: (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) if it determines, after consultation with outside legal counsel, that such disclosure is required by Applicable Law; provided that this clause (i) shall not be deemed to permit the Parent Board to effect a Parent Change in Recommendation except in accordance with Section 5.04(e) and Section 5.04(d), as applicable; (ii) prior to obtaining the Parent Stockholder Approval, negotiating or executing an Acceptable Confidentiality Agreement with any Person and its Representatives who has made (and not withdrawn) a bona fide written Acquisition Proposal after the date hereof that did not result from a breach of Section 5.04(a), if the Parent Board, as applicable, (A) shall have determined in good faith, after consultation with its outside legal counsel and financial advisor(s), that such Acquisition Proposal constitutes or would reasonably be expected to constitute or result in a Superior Proposal and (B) shall have determined in good faith, after consultation with its outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under Applicable Law; provided that Parent shall provide a copy of such executed Acceptable Confidentiality Agreement promptly (and in any event within two Business Days) to the Company; (iii) prior to obtaining the Parent Stockholder Approval, (A) engaging in any negotiations or discussions with any Person and its Representatives who has made (and not withdrawn) a bona fide written Acquisition Proposal after the date hereof that did not result from a breach of Section 5.04(a) (which negotiations or discussions need not be solely for clarification purposes) and (B) providing access to Parent’s or any of its Subsidiaries’ properties, books and records and providing information or data in response to a request therefor by a Person who has made (and not withdrawn) a bona fide written Acquisition Proposal that did not result from a breach of Section 5.04(a), in each case, if the Parent Board: (1) shall have determined in good faith, after consultation with its outside legal counsel and financial advisor(s), that such Acquisition Proposal constitutes or would reasonably be expected to constitute or result in a Superior Proposal; (~~vii~~2) ~~exempt any person other than~~ shall have determined in good faith, after consultation with its outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under Applicable Law; and (3) has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement; provided that Parent shall provide to the Company ~~from~~ a list of any ~~Takeover Statute~~ material non-public information or ~~approve~~ data that is provided to any Person given such access, and to the extent such information was not previously made available to the Company, copies of such information prior to or ~~authorize~~substantially concurrently with the time it is provided to such Person (and in any event within two Business Days thereof); (iv) prior to obtaining the Parent Stockholder Approval, ~~or cause or permit Parent any of its Subsidiaries to enter into~~ making a Parent ~~Acquisition Agreement~~Change in Recommendation (but only to the extent permitted by Section 5.04(c) or Section 5.04(d)); or (v) resolving, authorizing, committing or ~~(viii) resolve or publicly propose~~ agreeing to take any ~~action described in~~ of the foregoing actions, but only to the extent such actions would be permitted by the foregoing clauses (i) through (~~vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”~~iv). (dc) Notwithstanding anything in this Section 5.04 to the ~~contrary set forth in this Agreement~~contrary, ~~but subject to Section 5.6(e)~~if, at any time prior to obtaining the Parent ~~Shareholder~~ Stockholder Approval, ~~(i)~~ the Parent Board ~~may make a Parent Change of Recommendation in response to a Parent Intervening Event if the Parent Board has determined,~~ determines in good ~~faith~~ faith, after consultation with ~~the Parent’s~~ its financial advisor(s) and outside legal counsel, that the failure to take such action would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to the Parent’s stockholders under applicable Law, or (ii) the Parent Board may, in response to a ~~Parent Superior Proposal, (i) make a Parent Change of Recommendation and/or (ii) cause Parent to terminate this Agreement pursuant to Section 7.1(d)(ii) in order to enter into a Parent~~ bona fide written Acquisition ~~Agreement~~ Proposal that did not result from a breach of this Section 5.6 which Parent Acquisition Agreement the Parent Board determines, in good faith after consultation with Parent’s outside legal counsel and financial advisors, is a Parent Superior Proposal, but only if the Parent Board has determined in good faith after consultation with Parent’s outside legal counsel5.04, that (i) such proposal constitutes a Superior Proposal and (ii) the failure ~~make such a Parent Change of Recommendation and / or terminate~~ to take the actions specified in this ~~Agreement to enter into a Parent Acquisition Agreement providing for a Parent Superior Proposal~~ Section 5.04(c) would ~~breach or would reasonably~~ be ~~expected to breach~~ inconsistent with the Parent Board’s fiduciary duties ~~to Parent’s shareholders~~ under ~~applicable~~ Applicable Law~~. (e) Prior to Parent taking any action permitted under (i) Section 5.6(d)(i) in response to a Parent Intervening Event~~, the Parent ~~shall provide Company with ten (10) Business Days’~~ Board may, prior ~~written notice advising Company it intends~~ to ~~effect~~ obtaining the Parent Stockholder Approval, make a Parent Change ~~of Recommendation and specifying,~~ in ~~reasonable detail, the reasons therefor, and during such ten (10) Business Day period,~~ Recommendation; provided that the Parent ~~shall cause its Representatives (including its executive officers)~~ Board will not be entitled to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect make a Parent Change of in Recommendation and at the end of such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement proposed by Company), or (ii) Section 5.6(d)(ii) in response to a Parent Superior Proposal, unless (A) Parent ~~shall provide~~ delivers to the Company ~~with five (5) Business Days’ prior~~ a written notice (a “Parent ~~Superior Proposal~~ Notice”) advising the Company that the Parent Board ~~intends~~ proposes to take such ~~action, which Parent Superior Proposal Notice shall include a description of~~ action and containing the material terms and conditions of the ~~Parent~~ Superior Proposal that is the basis ~~for~~ of the proposed action of the Parent Board, the identity of the Person or group of Persons making such Superior Proposal, an unredacted copy of such Superior Proposal, including the ~~Parent Superior Proposal and a copy~~ most current version of any proposed definitive agreement ~~for such Parent~~ (which version shall be updated on a prompt basis) and any related documents (including financing documents) to the extent provided by the relevant party in connection with the Superior Proposal~~, if any~~, and (B) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Notice (such period from the time the Parent Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Notice (it being understood that any material revision, amendment, update or supplement to the terms and conditions of such Superior Proposal, including any revision in price or financing, shall ~~have negotiated~~ be deemed to constitute a new Superior Proposal and shall require a new notice but with an additional two Business Day (instead of five Business Day) period from the date of such notice) (it being understood that there may be multiple extensions), the “Parent Notice Period”), the Parent Board reaffirms in good faith (1) after consultation with ~~the Company and~~ its ~~Representatives and shall have directed its financial advisors and~~ outside legal counsel and financial advisor(s) that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account the adjustments to the terms and conditions of this Agreement committed to by the Company in writing and (2) after consultation with its outside legal counsel, that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under Applicable Law. If requested by the Company, Parent will, and will cause its Subsidiaries to, and will use its reasonable best efforts to cause its or their Representatives to, during the Parent Notice Period, engage in good faith negotiations with the Company and its Representatives (to the extent the Company ~~wishes~~ desires to negotiate) to ~~enable the Company to~~ make such ~~amendments to~~ adjustments in the terms and conditions of this Agreement as so that such Acquisition Proposal would ~~permit~~ cease to constitute a Superior Proposal. (d) Notwithstanding anything in this Section 5.04 or Section 5.05(d) to the contrary, if, at any time prior to obtaining the Parent ~~Board not to effect a Parent Change of Recommendation or terminate this Agreement in connection with such Parent Superior Proposal, and (C) at the end of such five (5) Business Day period~~Stockholder Approval, the Parent Board ~~again makes~~ determines in good faith, in response to a Parent Intervening Event, after consultation with its outside legal counsel, that the failure to make a Parent Change in Recommendation would be inconsistent with the Parent Board’s fiduciary duties under applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided that Parent will not be entitled to make, or agree or resolve to make, a Parent Change in Recommendation unless (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing a reasonably detailed description of the material facts underlying the Parent Board’s determination ~~under Section 5.6(d~~that a Parent Intervening Event has occurred and the reasons for taking such action (it being acknowledged that such Parent Intervening Event Notice shall not itself constitute a breach of this Agreement)~~. With~~ , and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to ~~Section 5.6(e)(ii), any material modifications to the terms of the Parent Superior Proposal (including any change in the amount or form of consideration) after~~ a Parent ~~Superior Proposal Notice~~ Intervening Event shall require a new notice but with an additional two Business Day (instead of four Business Day) period from the date of such notice) (it being understood that there may be multiple extensions), the “Parent ~~Superior Proposal~~ Intervening Event Notice Period”), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel) that, after taking into account the adjustments to the terms and conditions of this Agreement committed to by ~~Parent to~~ the Company in ~~compliance~~ writing, the failure to make a Parent Change in Recommendation would be inconsistent with ~~clause (A)~~its fiduciary duties under Applicable Law. If requested by the Company, Parent will, and shall commence a new notice period pursuant clause (A) of three (3) Business Days. (f) Nothing contained in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including taking and disclosing to its shareholders a position a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids of the Canadian Securities Administrators and similar provisions under Canadian Securities Laws relating to the provision of directors’ circulars in respect of a Parent Alternative Proposal. For the avoidance of doubt, this Section 5.6(f) shall not permit the Company Board to make (or otherwise modify the definition of) a Company Change of Recommendation except to the extent expressly permitted by Section 5.6(d). (g) Further to Section 5.6(a), Parent shall (and shall will cause its Subsidiaries to, and ~~its and their respective directors and officers and shall~~ will use its reasonable best efforts to cause its ~~other~~ or their Representatives to~~) promptly terminate any existing discussions~~ , during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and ~~negotiations conducted heretofore with any Person (other than~~ its Representatives to make such adjustments in the ~~Company, Parent or any~~ terms and conditions of ~~their respective Affiliates or Representatives) with respect~~ this Agreement so as to ~~any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result in~~ obviate the need for a Parent ~~Alternative Proposal. Further~~Change in Recommendation. (e) For purposes of this Agreement, ~~Parent~~ the following terms shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning Parent and any of its Subsidiaries and provide prompt written confirmation thereof.have the meanings assigned below:

Appears in 2 contracts

Samples: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)

No Solicitation by Parent. (a) ~~Subject to the provisions of this Section 5.6, from the date of this Agreement until the earlier of the Effective Time and the Termination Date,~~ Parent agrees that (i) neither it nor any of its Subsidiaries shall, and it shall ~~not~~not authorize or permit any officers, ~~and shall cause~~ directors, employees, agents or representatives of Parent or any of its Subsidiaries ~~and~~ (including any investment banker, attorney or accountant retained by it or any of its ~~and their respective directors and officers not~~ Subsidiaries) (the “Parent Representatives”) to, and ~~shall~~ on becoming aware of it will use its reasonable best efforts to ~~cause its and its Subsidiaries’ other Representatives not~~ stop such Parent Representative from continuing to, directly or indirectly, ~~(i)~~ solicit, ~~initiate~~ initiate, encourage or participate in any discussions or knowingly encourage ~~or knowingly facilitate any inquiry regarding~~(including by way of furnishing nonpublic information), or take any action designed to approve, endorse, recommend, or facilitate, directly or indirectly, any inquiry, proposal or offer (including any proposal or offer to its shareholders) with respect to a tender or exchange offer, scheme of arrangement, merger, consolidation, business combination, purchase or similar transaction or series of transactions (other than the ~~making~~ transactions contemplated by this Agreement) involving, individually or ~~submission~~ in the aggregate, 20% or more of the assets, net revenues or net income of Parent and its Subsidiaries on a consolidated basis or 20% or more of any ~~proposal~~class of the voting securities of Parent, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of Parent’s voting securities is issued to a third party or its shareholders (any such inquiry, proposal or offer ~~or indication of interest that constitutes~~being hereinafter referred to as a “Parent Alternative Proposal”), or ~~would reasonably be expected to lead to~~cooperate with or assist, participate or engage in any substantive discussions or negotiations concerning a Parent Alternative Proposal, or ~~result in~~amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree to do any of the foregoing; and (ii) it will immediately cease and cause to be terminated any existing negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent Parent or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Parent Alternative Proposal, (iiB) ~~engage in~~prior to the Cutoff Date, ~~knowingly encourage, continue~~ providing information (pursuant to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement (provided that such agreement may allow the counterparty thereto to make a Parent Alternative Proposal to the Parent Board of Directors in connection with the negotiation and discussions permitted by this Section 5.16) and which does not contain terms that prevent Parent from complying with its obligations under this Section 5.16) to or ~~otherwise participate~~ engaging in any negotiations or substantive discussions ~~or negotiations~~ with any Person ~~regarding~~ who has made an unsolicited bona fide written Parent Alternative ~~Proposal~~Proposal that the Board of Directors of Parent determines in good faith constitutes, or ~~any communications regarding or any inquiry, proposal or offer that would~~ could reasonably be expected to ~~lead to, or~~ result in, a Parent Superior Proposal, to the extent the Board of Directors of Parent, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of Parent or any committee thereof may make a Parent Adverse Recommendation Change in accordance with Section 5.3(c). For the purposes of making a Parent Superior Proposal determination pursuant to this Section 5.16(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.4(c), (ii) require assumptions that shall be made in the good faith judgment of the Parent Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Parent Superior Proposal determination made for purposes of Section 7.4(c). For the avoidance of doubt, it is understood that a Parent Superior Proposal determination made for purposes of this Section 5.16(a) shall not constitute a Parent Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(iii)(C)(1)(a)), and shall not by itself constitute a Parent Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.16 by any Subsidiary of Parent or the Parent Representatives shall be deemed to be a breach of this Section 5.16 by Parent. (b) As promptly as practicable after receipt thereof (and in any event within 24 hours), and prior to participating in any substantive discussions or negotiations, Parent will notify the Company orally and in writing of any request for information from any Person that has made a Parent Alternative Proposal (~~except to notify such Person that the provisions of this Section 5.6 prohibit any such discussions~~ or ~~negotiations), (iii) furnish any non-public information relating~~ has indicated to Parent that it is seeking such information in contemplation of making a Parent Alternative Proposal) or ~~its Subsidiaries in connection with or for~~ the ~~purpose~~ receipt of ~~facilitating a~~ any Parent Alternative Proposal or any ~~inquiry, proposal, offer or indication of interest that would reasonably be expected~~ inquiry with respect to ~~lead to, or result in,~~ a Parent Alternative ~~Proposal~~ Proposal, including the identity of the Person or group engaging in such substantive discussions or negotiations, requesting such information or making such Parent Alternative Proposal, and ~~request~~ the ~~prompt return or destruction~~ material terms and conditions of any ~~confidential information~~ Parent Alternative Proposal. Parent will (i) keep the Company reasonably informed on a timely basis (and in any event within 24 hours) of the status and material details of any Parent Alternative Proposals, (ii) provide to the Company as soon as practicable (and in any event within 24 hours) after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to Parent from any third party in connection with any Parent Alternative Proposal or sent or provided by Parent to any third party in connection with any Parent Alternative ~~Proposal;~~ Proposal and (iviii) ~~recommend~~ provide or make available to the Company any material nonpublic information concerning Parent or any of its Subsidiaries that is provided to the Person making such Parent Alternative Proposal which was not previously provided or made available to the Company as promptly as practicable (and in any event within 24 hours) after it provides such information to such Person. Any written notice under this Section 5.16 shall be given by facsimile or electronic mail with receipt confirmed or personal delivery. Notwithstanding anything in this Agreement to the contrary, no failure by Parent to comply with any notice or delivery requirement set forth in this Section 5.16 shall constitute a breach of this Section 5.16 unless such failure is intentional or materially prejudicial to the Company. (c) Without limiting the ability to terminate, amend, modify or waive any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1 (s), nothing in this Section 5.16 shall permit Parent to enter into any other letter of intent, memorandum of understandings, agreement in principle, option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership agreement or other similar agreement with respect to a Parent Alternative Proposal during the term of this Agreement, it being agreed that during the term of this Agreement (except ~~for confidentiality agreements permitted under~~ pursuant to Section ~~5.6(b~~7.4(c)); , Parent shall not enter into any agreement with any Person that provides for, constitutes or relates to, a Parent Alternative Proposal, other than a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement (~~v) approve any transaction under, or any third party becoming an “interested stockholder” under Section 203 of~~ provided that such agreement may allow the DGCL (or similar Takeover Statute applicable to Parent under Canadian Law); or (vi) adopt, approve, endorse, authorize agree or publicly propose to adopt, approve, endorse or authorize to do any of the foregoing or otherwise knowingly facilitate any effort or attempt counterparty thereto to make a Parent Alternative Proposal. (b) Notwithstanding anything in this Section 5.6 to the contrary, at any time prior to, but not after, obtaining the Parent Shareholder Approval, if Parent receives a bona fide, unsolicited Parent Alternative Proposal in writing that did not result from a breach of this Section 5.6 (which Parent Alternative Proposal is not withdrawn), Parent and its Representatives may contact the third party making such Parent Alternative Proposal to ~~clarify the terms and conditions thereof. If~~ the Parent Board ~~determines~~ of Directors in ~~good faith after consultation~~ connection with ~~Parent’s outside legal counsel~~ the negotiation and ~~financial advisors~~ discussions permitted by this Section 5.16) and which does not contain terms that ~~such~~ prevent Parent Alternative Proposal constitutes a Parent Superior Proposal or would reasonably be expected to result in a Parent Superior Proposal, then Parent may take the following actions: (i) furnish nonpublic information to the third party making such Parent Alternative Proposal (including from complying with its ~~Representatives, including its equity~~ obligations under this Section 5.16 and ~~debt financing sources) in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has~~ an executed ~~a confidentiality agreement with Parent (a~~ copy of which shall be provided to the Company within 24 hours of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, prior to or substantially concurrently with the time such non-public information is provided or made available to such third party, any non-public information furnished to such third party that was not previously furnished to the Company; provided, however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. Parent shall promptly (and in any event within 24 hours) notify the Company in writing if: (i) any inquiries, proposals or offers with respect to a Parent Alternative Proposal are received by Parent or any of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, provided to the Knowledge of Parent, has been or is reasonably likely to have been made in connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions thereof (including the name of the applicable third party and, complete copies of any written requests, proposals or offers and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall keep the Company fully informed on a current basis of any material developments regarding any Parent Alternative Proposals or any material change to the terms of any such Parent Alternative Proposal and any material change to the status of any such discussions or negotiations with respect thereto. (c) Except as expressly permitted by Section 5.6(d), the Parent Board, including any committee thereof, shall not (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, the Parent Recommendation; (ii) fail to include the Parent Recommendation in the Management Information Circular that is mailed by Parent to the shareholders of Parent; (iii) if any Parent Alternative Proposal that is structured as a tender offer or exchange offer for the outstanding Parent Common Shares is commenced (other than by the Company or an Affiliate of the Company), fail to recommend and publicly announce, within ten (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by its shareholders; (iv) approve, adopt, recommend or declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal; (v) fail to publicly reaffirm the Parent Recommendation, within ten (10) Business Days after a Parent Alternative Proposal (or material modification thereto) is first publicly announced by Parent or the person making such Parent Alternative Proposal (or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days); (vi) approve, adopt or recommend, or declare advisable or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in and entered into compliance with Section 5.6(b)) with respect to any Parent Alternative Proposal; (vii) exempt any person other than the Company from any Takeover Statute or approve or authorize, or cause or permit Parent any of its Subsidiaries to enter into a Parent Acquisition Agreement, or (viii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”). (d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(e), prior to obtaining the Parent Shareholder Approval, (i) the Parent Board may make a Parent Change of Recommendation in response to a Parent Intervening Event if the Parent Board has determined, in good faith after consultation with the Parent’s outside legal counsel, that the failure to take such action would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to the Parent’s stockholders under applicable Law, or (ii) the Parent Board may, in response to a Parent Superior Proposal, (i) make a Parent Change of Recommendation and/or (ii) cause Parent to terminate this Agreement pursuant to Section 7.1(d)(ii) in order to enter into a Parent Acquisition Agreement that did not result from a breach of this Section 5.6 which Parent Acquisition Agreement the Parent Board determines, in good faith after consultation with Parent’s outside legal counsel and financial advisors, is a Parent Superior Proposal, but only if the Parent Board has determined in good faith after consultation with Parent’s outside legal counsel, that the failure make such a Parent Change of Recommendation and / or terminate this Agreement to enter into a Parent Acquisition Agreement providing for a Parent Superior Proposal would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to Parent’s shareholders under applicable Law. (e) Prior to Parent taking any action permitted under (i) Section 5.6(d)(i) in response to a Parent Intervening Event, the Parent shall provide Company with ten (10) Business Days’ prior written notice advising Company it intends to effect a Parent Change of Recommendation and specifying, in reasonable detail, the reasons therefor, and during such ten (10) Business Day period, the Parent shall cause its Representatives (including its executive officers) to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Parent Change of Recommendation and at the end of such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement proposed by Company), or (ii) Section 5.6(d)(ii) in response to a Parent Superior Proposal, (A) Parent shall provide the Company with five (5) Business Days’ prior written notice (a “Parent Superior Proposal Notice”) advising the Company that the Parent Board intends to take such action, which Parent Superior Proposal Notice shall include a description of the terms and conditions of the Parent Superior Proposal that is the basis for the proposed action of the Parent Board, the identity of the Person making the Parent Superior Proposal and a copy of any proposed definitive agreement for such Parent Superior Proposal, if any, and (B) Parent shall have negotiated in good faith with the Company and its Representatives and shall have directed its financial advisors and outside legal counsel to engage in good faith negotiations with Company and its Representatives (to the extent the Company wishes to negotiate) to enable the Company to make such amendments to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation or terminate this Agreement in connection with such Parent Superior Proposal, and (C) at the end of such five (5) Business Day period, the Parent Board again makes the fiduciary determination under Section 5.6(d). With respect to Section 5.6(e)(ii), any material modifications to the terms of the Parent Superior Proposal (including any change in the amount or form of consideration) after a Parent Superior Proposal Notice shall require a new Parent Superior Proposal Notice by Parent to the Company in compliance with clause (A), and shall commence a new notice period pursuant clause (A) of three (3) Business Days. (f) Nothing contained in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including taking and disclosing to its shareholders a position a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids of the Canadian Securities Administrators and similar provisions under Canadian Securities Laws relating to the provision of directors’ circulars in respect of a Parent Alternative Proposal. For the avoidance of doubt, this Section 5.6(f) shall not permit the Company Board to make (or otherwise modify the definition of) a Company Change of Recommendation except to the extent expressly permitted by Section 5.6(d). (g) Further to Section 5.6(a), Parent shall (and shall cause its Subsidiaries and its and their respective directors and officers and shall use its reasonable best efforts to cause its other Representatives to) promptly terminate any existing discussions and negotiations conducted heretofore with any Person (other than the Company, Parent or any of their respective Affiliates or Representatives) with respect to any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result in a Parent Alternative Proposal. Further, Parent shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning Parent and any of its Subsidiaries and provide prompt written confirmation thereof.purposes hereof:

Appears in 2 contracts

Samples: Merger Agreement (Pride International Inc), Merger Agreement (Ensco PLC)

No Solicitation by Parent. (a) ~~Subject to~~ During the ~~provisions of this Section 5.6, from the date of this Agreement until the earlier of the Effective Time and the Termination Date~~Pre-Closing Period, Parent ~~agrees that it shall not,~~ will not and ~~shall cause~~ will not authorize or permit any of its ~~Subsidiaries and its and their respective directors and officers not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other~~ Representatives ~~not~~ to, directly or indirectly, as applicable, (i) solicit, ~~initiate~~ initiate, seek, entertain, knowingly encourage, facilitate, support or ~~knowingly encourage~~ induce the making, submission or ~~knowingly facilitate~~ announcement of any ~~inquiry~~ inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or ~~the making~~ deliver or ~~submission~~ make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of ~~any proposal~~interest, proposal or offer ~~or indication of interest~~ that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, except for the purpose of complying with Applicable Law, (iii) grant any waiver or ~~result in~~release under any confidentiality, ~~a Parent Alternative~~ standstill or similar agreement (other than to Company), (iv) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iiv) ~~engage in~~enter into any letter of intent, ~~knowingly encourage~~term sheet, ~~continue~~ merger agreement, acquisition agreement, option agreement or any other Contract contemplating or otherwise ~~participate in~~ relating to any ~~discussions or negotiations with any Person regarding Parent Alternative~~ Acquisition Proposal, (vi) submit any Acquisition Proposal to the vote of any stockholders of Parent or (vii) enter into any ~~communications regarding~~ other transaction or ~~any inquiry~~series of transactions not in the Ordinary Course of Business, ~~proposal~~ the consummation of which would impede, interfere with, prevent or ~~offer that~~ delay, or would reasonably be expected to ~~lead to~~impede, interfere with, prevent or ~~result in~~delay, ~~a Parent Alternative Proposal (except to notify such Person that~~ the ~~provisions~~ consummation of the Share Contribution or the other Transactions; provided, however, that, notwithstanding anything contained in this Section ~~5.6 prohibit any such discussions or negotiations~~6.2(a), ~~(iii)~~ prior to the receipt of the Required Parent Stockholder Vote, Parent may furnish ~~any~~ non-public information ~~relating to~~ regarding Parent or its Subsidiaries in connection with or for the purpose of facilitating a Parent Alternative Proposal or any inquiry, proposal, offer or indication of interest that would reasonably be expected to lead to, ~~or result in, a Parent Alternative Proposal~~ and ~~request the prompt return or destruction of any confidential information provided to any third party in connection with any Parent Alternative Proposal; (iv) recommend or~~ enter into discussions or negotiations with, any ~~other letter of intent, memorandum of understandings, agreement~~ Person in principle, option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership agreement or other similar agreement with respect response to a ~~Parent Alternative Proposal (except for confidentiality agreements permitted under Section 5.6(b)); (v) approve any transaction under~~bona fide written Acquisition Proposal, or any third party becoming an “interested stockholder” under Section 203 of the DGCL (or similar Takeover Statute applicable to Parent under Canadian Law); or (vi) adopt, approve, endorse, authorize agree or publicly propose to adopt, approve, endorse or authorize to do any of the foregoing or otherwise knowingly facilitate any effort or attempt to make a Parent Alternative Proposal. (b) Notwithstanding anything in this Section 5.6 to the contrary, at any time prior to, but not after, obtaining the Parent Shareholder Approval, if Parent receives a bona fide, unsolicited Parent Alternative Proposal in writing that did not result from a breach of this Section 5.6 (which ~~Parent Alternative Proposal is not withdrawn), Parent and its Representatives may contact the third party making such Parent Alternative Proposal to clarify the terms and conditions thereof. If~~ the Parent Board determines in good ~~faith~~ faith, after consultation with ~~Parent’s~~ its independent financial advisor and its outside legal ~~counsel and financial advisors that such Parent Alternative Proposal constitutes a Parent Superior Proposal or would reasonably be expected to result in a Parent Superior Proposal~~counsel, ~~then Parent may take the following actions: (i) furnish nonpublic information to the third party making such Parent Alternative Proposal (including its Representatives~~constitutes, including its equity and debt financing sources) in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has executed a confidentiality agreement with Parent (a copy of which shall be provided to the Company within 24 hours of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, prior to or substantially concurrently with the time such non-public information is provided or made available to such third party, any non-public information furnished to such third party that was not previously furnished to the Company; provided, however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. Parent shall promptly (and in any event within 24 hours) notify the Company in writing if: (i) any inquiries, proposals or offers with respect to a Parent Alternative Proposal are received by Parent or any of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, to the Knowledge of Parent, has been or is reasonably likely to ~~have been made~~ result in, a Superior Offer (and is not withdrawn) if: (A) such Acquisition Proposal was not, directly or indirectly, solicited, initiated or knowingly encouraged in ~~connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions thereof (including the name~~ violation of the applicable third party and, complete copies of any written requests, proposals or offers and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall keep the Company fully informed on a current basis of any material developments regarding any Parent Alternative Proposals or any material change to the terms of any such Parent Alternative Proposal and any material change to the status of any such discussions or negotiations with respect thereto. (c) Except as expressly permitted by Section 5.6(d), the Parent Board, including any committee thereof, shall not (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, the Parent Recommendation; (ii) fail to include the Parent Recommendation in the Management Information Circular that is mailed by Parent to the shareholders of Parent; (iii) if any Parent Alternative Proposal that is structured as a tender offer or exchange offer for the outstanding Parent Common Shares is commenced (other than by the Company or an Affiliate of the Company), fail to recommend and publicly announce, within ten (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by its shareholders; (iv) approve, adopt, recommend or declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal; (v) fail to publicly reaffirm the Parent Recommendation, within ten (10) Business Days after a Parent Alternative Proposal (or material modification thereto) is first publicly announced by Parent or the person making such Parent Alternative Proposal (or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days6.2(a); (vi) approve, adopt or recommend, or declare advisable or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in and entered into compliance with Section 5.6(b)) with respect to any Parent Alternative Proposal; (vii) exempt any person other than the Company from any Takeover Statute or approve or authorize, or cause or permit Parent any of its Subsidiaries to enter into a Parent Acquisition Agreement, or (viii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”). (d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(e), prior to obtaining the Parent Shareholder Approval, (iB) the Parent Board ~~may make a Parent Change of Recommendation in response to a Parent Intervening Event if the Parent Board has determined,~~ concludes in good ~~faith after consultation with~~ faith, based on the ~~Parent’s~~ advice of outside legal counsel, that the failure to take such action ~~would~~ is reasonably likely to result in a breach of the fiduciary duties of the Parent Board under Applicable Law; (C) at least five (5) Business Days prior to furnishing any such non-public information to, or entering into discussions with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish non-public information to, or enter into discussions with, such Person; and (D) at least five (5) Business Days prior to furnishing any such non-public information to such Person, Parent furnishes such non-public information to the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company). Without limiting the generality of the foregoing, if any of Parent’s Representatives, whether in his, her or its capacity as such or in any other capacity, takes any action that Parent is obligated pursuant to this Section 6.2(a) not to authorize or permit such Representative to take, then Parent shall be deemed for all purposes of this Agreement to have breached this Section 6.2(a). In addition, notwithstanding anything in this Agreement to the contrary, following the receipt of an Acquisition Proposal that was not solicited after the date hereof in contravention of this Section 6.2(a), the Parent Board may contact the Person or Group who has made such Acquisition Proposal solely for the purpose of seeking clarification of the terms and conditions thereof, so as to determine whether such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer. (b) Parent will, and will cause its Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date hereof with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than the Company and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to Parent in connection with an Acquisition Proposal and request from each Person (other than the Company and its Representatives) the prompt return or destruction of all non-public information with respect to Parent previously provided to such Person in connection with an Acquisition Proposal. (c) Parent shall as soon as reasonably possible (but in any event, within 24 hours) notify Company orally and in writing after receipt by Parent or, to the Knowledge of Parent, by any of Parent’s Representatives, as applicable, of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to ~~breach the Parent Board’s fiduciary duties to the Parent’s stockholders under applicable Law~~lead to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal, or (iiiv) any request for non-public information relating to Parent or for access to any of the properties, books or records of Parent by any Person or Persons other than the Company and its Representatives. Such notice shall describe (A) the Parent Board may, in response to a Parent Superior Proposal, (i) make a Parent Change of Recommendation and/or (ii) cause Parent to terminate this Agreement pursuant to Section 7.1(d)(ii) in order to enter into a Parent Acquisition Agreement that did not result from a breach of this Section 5.6 which Parent Acquisition Agreement the Parent Board determines, in good faith after consultation with Parent’s outside legal counsel and financial advisors, is a Parent Superior Proposal, but only if the Parent Board has determined in good faith after consultation with Parent’s outside legal counsel, that the failure make such a Parent Change of Recommendation and / or terminate this Agreement to enter into a Parent Acquisition Agreement providing for a Parent Superior Proposal would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to Parent’s shareholders under applicable Law. (e) Prior to Parent taking any action permitted under (i) Section 5.6(d)(i) in response to a Parent Intervening Event, the Parent shall provide Company with ten (10) Business Days’ prior written notice advising Company it intends to effect a Parent Change of Recommendation and specifying, in reasonable detail, the reasons therefor, and during such ten (10) Business Day period, the Parent shall cause its Representatives (including its executive officers) to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the material terms and conditions of ~~this Agreement in a manner that would obviate the need to effect a Parent Change of Recommendation and at the end of~~ such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement proposed by Company), or (ii) Section 5.6(d)(ii) in response to a Parent Superior Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (AB) Parent shall provide the Company with five (5) Business Days’ prior written notice (a “Parent Superior Proposal Notice”) advising the Company that the Parent Board intends to take such action, which Parent Superior Proposal Notice shall include a description of the terms and conditions of the Parent Superior Proposal that is the basis for the proposed action of the Parent Board, the identity of the Person or Group making ~~the Parent Superior Proposal and a copy of~~ any ~~proposed definitive agreement for~~ such ~~Parent Superior~~ Acquisition Proposal, ~~if any~~inquiry, expression of interest, proposal, offer, notice or request. Parent shall keep the Company fully informed of the status and details of, and ~~(B) Parent shall have negotiated in good faith with the Company~~ any modification to, any such inquiry, expression of interest, proposal or offer and ~~its Representatives~~ any correspondence or communications related thereto and shall have directed its financial advisors and outside legal counsel to engage in good faith negotiations with Company and its Representatives (to the extent the Company wishes to negotiate) to enable the Company to make such amendments to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation or terminate this Agreement in connection with such Parent Superior Proposal, and (C) at the end of such five (5) Business Day period, the Parent Board again makes the fiduciary determination under Section 5.6(d). With respect to Section 5.6(e)(ii), any material modifications to the terms of the Parent Superior Proposal (including any change in the amount or form of consideration) after a Parent Superior Proposal Notice shall require a new Parent Superior Proposal Notice by Parent provide to the Company a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in compliance with clause (A), and shall commence a new notice period pursuant clause (A) of three (3) Business Days. (f) Nothing contained in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including taking and disclosing to its shareholders a position a “stop, look and listen” statement pending disclosure of its position thereunderwriting, or (ii) complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids of the Canadian Securities Administrators and similar provisions under Canadian Securities Laws relating to the provision of directors’ circulars a reasonable written summary thereof, if it is not in respect of a Parent Alternative Proposal. For the avoidance of doubt, this Section 5.6(f) shall not permit the Company Board to make (or otherwise modify the definition of) a Company Change of Recommendation except to the extent expressly permitted by Section 5.6(d)writing. (g) Further to Section 5.6(a), Parent shall (and shall cause its Subsidiaries and its and their respective directors and officers and shall use its reasonable best efforts to cause its other Representatives to) promptly terminate any existing discussions and negotiations conducted heretofore with any Person (other than the Company, Parent or any of their respective Affiliates or Representatives) with respect to any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result in a Parent Alternative Proposal. Further, Parent shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning Parent and any of its Subsidiaries and provide prompt written confirmation thereof.

Appears in 1 contract

Samples: Acquisition Agreement (Avalanche Biotechnologies, Inc.)

No Solicitation by Parent. (a) ~~Subject~~ Parent will, and will cause its Subsidiaries, and its and their respective directors, officers and Representatives to, immediately cease, and cause to be terminated, any solicitation, encouragement, discussion or negotiations that commenced prior to and were ongoing as of the ~~provisions~~ date of this Agreement with any Person with respect to a Parent Competing Proposal. (b) Except as otherwise expressly permitted by this Section ~~5.6~~6.4, from and after the date of this Agreement until the ~~earlier~~ Effective Time, or if earlier, the termination of ~~the Effective Time and the Termination Date~~this Agreement in accordance with Article VIII hereof, Parent ~~agrees that it shall~~ will not, and ~~shall~~ will cause its ~~Subsidiaries~~ Affiliates and Subsidiaries, and its and their respective directors and ~~officers not to~~officers, and ~~shall use reasonable best efforts to~~ will cause its ~~and its Subsidiaries’ other~~ Representatives not to, directly or indirectly, (i) ~~solicit~~initiate, ~~initiate~~ solicit or knowingly encourage or knowingly facilitate any ~~inquiry~~ inquiries, proposals, or offers regarding, or the making ~~or submission~~ of ~~any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, or result in,~~ a Parent ~~Alternative~~ Competing Proposal, (ii) engage ~~in, knowingly encourage, continue or otherwise participate~~ in any discussions or negotiations with any Person ~~regarding Parent Alternative Proposal, or any communications regarding or any inquiry, proposal or offer that would reasonably be expected~~ with respect to ~~lead to, or result in,~~ a Parent ~~Alternative Proposal (except to notify such Person that the provisions of this Section 5.6 prohibit any such discussions or negotiations)~~Competing Proposal, (iii) furnish any non-public information ~~relating to~~ regarding Parent or its ~~Subsidiaries~~ Subsidiaries, or access to the properties, assets or employees of Parent or its Subsidiaries, to any Person in connection with or ~~for the purpose of facilitating~~ in response to a Parent ~~Alternative Proposal or any inquiry~~Competing Proposal, proposal, offer or indication of interest that would reasonably be expected to lead to, or result in, a Parent Alternative Proposal and request the prompt return or destruction of any confidential information provided to any third party in connection with any Parent Alternative Proposal; (iv) ~~recommend or~~ enter into any ~~other~~ letter of ~~intent, memorandum of understandings,~~ intent or agreement in principle, ~~option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership~~ or other agreement or ~~other similar agreement with~~ commitment in respect to of any proposal or offer that constitutes a Parent ~~Alternative~~ Competing Proposal (~~except for~~ other than a confidentiality ~~agreements permitted under~~ agreement in accordance with Section ~~5.6(b~~6.4(f)(ii)); ) or (v) ~~approve any transaction under~~resolve, agree or publicly propose to, or permit Parent or any ~~third party becoming an “interested stockholder” under Section 203~~ of ~~the DGCL (~~its Subsidiaries or ~~similar Takeover Statute applicable~~ any of its or their Representatives to ~~Parent under Canadian Law); or (vi) adopt, approve, endorse, authorize~~ agree or publicly propose to ~~adopt, approve, endorse or authorize to do~~ take any of the ~~foregoing or otherwise knowingly facilitate any effort or attempt~~ actions referred to ~~make a Parent Alternative Proposal~~in clauses (i) to (iv). (bc) ~~Notwithstanding anything~~ Parent shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, any standstill or confidentiality provision with respect to any such proposal or offer or similar matter in ~~this Section 5.6~~ any agreement to the contrary, at any time prior to, but not after, obtaining the Parent Shareholder Approval, if Parent receives a bona fide, unsolicited Parent Alternative Proposal in writing that did not result from a breach of this Section 5.6 (which Parent ~~Alternative Proposal~~ or any of its Subsidiaries is ~~not withdrawn)~~a party; provided, ~~Parent and its Representatives may contact the third party making such Parent Alternative Proposal to clarify the terms and conditions thereof. If~~ that if the Parent Board determines in good ~~faith~~ faith, after consultation with Parent’s ~~outside legal counsel~~ financial advisor and financial advisors that such Parent Alternative Proposal constitutes a Parent Superior Proposal or would reasonably be expected to result in a Parent Superior Proposal, then Parent may take the following actions: (i) furnish nonpublic information to the third party making such Parent Alternative Proposal (including its Representatives, including its equity and debt financing sources) in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has executed a confidentiality agreement with Parent (a copy of which shall be provided to the Company within 24 hours of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, prior to or substantially concurrently with the time such non-public information is provided or made available to such third party, any non-public information furnished to such third party that was not previously furnished to the Company; provided, however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. Parent shall promptly (and in any event within 24 hours) notify the Company in writing if: (i) any inquiries, proposals or offers with respect to a Parent Alternative Proposal are received by Parent or any of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, to the Knowledge of Parent, has been or is reasonably likely to have been made in connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions thereof (including the name of the applicable third party and, complete copies of any written requests, proposals or offers and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall keep the Company fully informed on a current basis of any material developments regarding any Parent Alternative Proposals or any material change to the terms of any such Parent Alternative Proposal and any material change to the status of any such discussions or negotiations with respect thereto. (c) Except as expressly permitted by Section 5.6(d), the Parent Board, including any committee thereof, shall not (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, the Parent Recommendation; (ii) fail to include the Parent Recommendation in the Management Information Circular that is mailed by Parent to the shareholders of Parent; (iii) if any Parent Alternative Proposal that is structured as a tender offer or exchange offer for the outstanding Parent Common Shares is commenced (other than by the Company or an Affiliate of the Company), fail to recommend and publicly announce, within ten (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by its shareholders; (iv) approve, adopt, recommend or declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal; (v) fail to publicly reaffirm the Parent Recommendation, within ten (10) Business Days after a Parent Alternative Proposal (or material modification thereto) is first publicly announced by Parent or the person making such Parent Alternative Proposal (or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days); (vi) approve, adopt or recommend, or declare advisable or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in and entered into compliance with Section 5.6(b)) with respect to any Parent Alternative Proposal; (vii) exempt any person other than the Company from any Takeover Statute or approve or authorize, or cause or permit Parent any of its Subsidiaries to enter into a Parent Acquisition Agreement, or (viii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”). (d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(e), prior to obtaining the Parent Shareholder Approval, (i) the Parent Board may make a Parent Change of Recommendation in response to a Parent Intervening Event if the Parent Board has determined, in good faith after consultation with the Parent’s outside legal counsel, that the failure to take such action would ~~breach or would~~ be reasonably likely to be ~~expected~~ inconsistent with its fiduciary obligations to ~~breach the Parent Board’s fiduciary duties to the~~ Parent’s stockholders under applicable Law, Parent may waive any such standstill provision solely to the extent necessary to permit a third party to make a Parent Competing Proposal on a confidential basis conditioned upon such person agreeing that Parent shall not be prohibited from providing any information to the Company regarding any such Parent Competing Proposal in accordance with the terms of this Section 6.4. Parent shall promptly (and in any event within two (2) Business Days of the date of this Agreement) request each Person that has prior to the date of this Agreement executed a confidentiality agreement in connection with its consideration of any Parent Competing Proposal to, in accordance with the terms of such agreement, return or destroy all confidential information furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of Parent or any of its Subsidiaries. Parent agrees that it shall promptly inform its Representatives of the obligations undertaken in this Section 6.4. (d) Unless expressly permitted by Section 6.4(f) or Section 6.4(g), Parent shall not (i) fail to include the Parent Board Recommendation in the Joint Proxy Statement, (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to the Company, the Parent Board Recommendation, (iii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Parent Competing Proposal or (iv) publicly make any recommendation in connection with a tender or exchange offer for any outstanding capital stock of Parent, other than a recommendation to reject such offer (the taking of any action described in this Section 6.4(d) being referred to as a “Parent Change of Recommendation”). (e) From and after the date of this Agreement, Parent shall promptly advise (but in each case, not later than two (2) days of such receipt or request) the Company of the receipt by Parent of any Parent Competing Proposal made on or after the date of this Agreement or any request for non-public information or data relating to Parent or any of its Subsidiaries made by any Person in connection with a Parent Competing Proposal or any request for discussions or negotiations with Parent or a Representative of Parent relating to a Parent Competing Proposal (but in each case, not later than two (2) days of such receipt or request), and Parent shall provide to the Company (within such two (2) day time frame) either (i) a copy of any such Parent Competing Proposal (including all exhibits and schedules thereto) made in writing provided to Parent or any of its Subsidiaries or (ii) a written summary of the material terms of such Parent Competing Proposal (including the identity of the Person making such Company Competing Proposal) if not made in writing. Parent shall keep the Company reasonably informed on a reasonably prompt basis with respect to the status and material terms of any such Parent Competing Proposal and any material changes to the status of any such discussions or negotiations. Without limiting the foregoing, Parent shall notify the Company if Parent determines to begin providing information or to engage in discussions or negotiations concerning a Parent Competing Proposal, prior to providing any such information or engaging in any such discussions or negotiations. (f) Notwithstanding anything in this Agreement to the contrary, Parent, directly or indirectly through one or more of its Representatives, may: (i) to the extent applicable, disclose to Parent’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or make any “stop, look and listen” communication to Parent’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or any similar statement in response to any publicly disclosed Parent Competing Proposal; provided, however, that Parent shall not effect any Parent Change of Recommendation other than in accordance with Section 6.4(f)(iii) or Section 6.4(g); (ii) prior to the receipt of the Parent Stockholder Approval, engage in the activities prohibited by Sections 6.4(b)(i), 6.4(b)(ii) or 6.4(b)(iii) with any Person who has made a written, bona fide Parent Competing Proposal that did not arise from a breach of the obligations set forth in this Section 6.4; provided, however, that (A) no non-public information that is prohibited from being furnished pursuant to Section 6.4(b) may be furnished until Parent receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of nonpublic information furnished to such Person by or on behalf of Parent that are no less favorable to Parent in the aggregate than the terms of the Confidentiality Agreement; provided, further, that such confidentiality agreement does not contain provisions that prohibit Parent from complying with the provisions of this Section 6.4, and (B) prior to taking any such actions, the Parent Board ~~may~~or any committee thereof determines in good faith, after consultation with Parent’s financial advisor and outside legal counsel, that such Parent Competing Proposal is, or could reasonably be expected to lead to, a Parent Superior Proposal; (iii) prior to the receipt of the Parent Stockholder Approval, in response to a Parent ~~Superior Proposal~~Competing Proposal that is conditioned upon the termination of this Agreement or the failure of the Transactions to be consummated (including through the failure of any of the conditions set forth in Article VII) and that did not arise from a breach of the obligations set forth in this Section 6.4, ~~(i) make~~ if the Parent Board so chooses, cause Parent to effect a Parent Change of Recommendation ~~and/or (ii) cause Parent~~ or to terminate this Agreement pursuant to Section ~~7.1(d)(ii~~8.1(f), if prior to taking such action (A) ~~in order to enter into a Parent Acquisition Agreement that did not result from a breach of this Section 5.6 which Parent Acquisition Agreement~~ the Parent Board ~~determines,~~ determines in good ~~faith~~ faith, after consultation with Parent’s ~~outside legal counsel~~ financial advisor and ~~financial advisors, is a Parent Superior Proposal, but only if the Parent Board has determined in good faith after consultation with Parent’s~~ outside legal counsel, that ~~the failure make~~ such a Parent ~~Change of Recommendation and / or terminate this Agreement to enter into a Parent Acquisition Agreement providing for~~ Competing Proposal is a Parent Superior Proposal ~~would breach or would reasonably be expected~~ (taking into account any adjustment to breach the Parent Board’s fiduciary duties to Parent’s shareholders under applicable Law. (e) Prior to Parent taking any action permitted under (i) Section 5.6(d)(i) in response to a Parent Intervening Event, the Parent shall provide Company with ten (10) Business Days’ prior written notice advising Company it intends to effect a Parent Change of Recommendation and specifying, in reasonable detail, the reasons therefor, and during such ten (10) Business Day period, the Parent shall cause its Representatives (including its executive officers) to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the terms and conditions of ~~this Agreement in a manner that would obviate~~ the need to effect a Parent Change of Recommendation and at the end of such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement Merger proposed by ~~Company), or (ii) Section 5.6(d)(ii)~~ the Company in response to a such Parent ~~Superior~~ Competing Proposal, ) and (AB) Parent shall ~~provide the Company with~~ have given five (5) Business Days’ prior ~~written~~ notice ~~(a “Parent Superior Proposal Notice”) advising~~ to the Company that Parent has received such proposal, specifying the material terms and conditions of such proposal (including the identity of the Person making such proposal), and, that Parent ~~Board~~ intends to take such action, and (1) after giving such notice and prior to effecting such Parent Change of Recommendation or termination, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company (to the extent the Company wishes to negotiate), which ~~Parent Superior Proposal Notice shall include~~ negotiations may be on a ~~description of~~ nonexclusive basis with respect to other negotiations or discussions permitted by this Section 6.4, to make such adjustments or revisions to the terms and conditions of this Agreement such that the Parent Competing Proposal would no longer constitute a Parent Superior ~~Proposal that is~~ Proposal; and (2) at the ~~basis for the proposed action~~ end of the five (5) Business Day period, prior to taking action to effect a Parent ~~Board~~Change of Recommendation or to terminate this Agreement pursuant to Section 8.1(f), the ~~identity~~ Parent Board takes into account any adjustments or revisions to the terms of this Agreement committed to by the ~~Person making~~ Company in writing, and determines in good faith, after consultation with Parent’s financial advisor and outside legal counsel, that the Parent Competing Proposal remains a Parent Superior ~~Proposal and a copy~~ Proposal; provided, that in the event of any ~~proposed definitive agreement for such~~ change to the financial terms of, or any other material amendment or material modification to, any Parent Superior Proposal, Parent shall be required to deliver a new written notice to the Company and to comply with the requirements of this Section 6.4(f)(iii) with respect to such new written notice, except that the advance written notice obligation set forth in this Section 6.4(f)(iii) shall be reduced to two (2) Business Days; and (iv) prior to the receipt of the Parent Stockholder Approval, seek clarification from (but not engage in negotiations with or provide non-public information to) any Person that has made a Parent Competing Proposal solely to clarify and understand the terms and conditions of such proposal to provide adequate information for the Parent Board or any committee thereof to make an informed determination under this Section 6.4. (g) Notwithstanding anything in this Agreement to the contrary, prior to the receipt of the Parent Stockholder Approval, in response to a Parent Intervening Event that occurs or arises after the date of this Agreement, Parent may, if ~~any~~the Parent Board so chooses, effect a Parent Change of Recommendation if prior to taking such action (A) the Parent Board determines in good faith, after consultation with Parent’s financial advisor and outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary obligations to Parent’s stockholders under applicable Law, (B) Parent shall have ~~negotiated~~ given five (5) Business Days’ prior notice to the Company that Parent has determined that a Parent Intervening Event has occurred or arisen (which notice will reasonably describe such Parent Intervening Event) and that Parent intends to effect a Parent Change of Recommendation, and (1) after giving such notice and prior to effecting such Parent Change of Recommendation, Parent negotiates (and causes its officers, employees, financial advisor and outside legal counsel to negotiate) in good faith with the Company ~~and its Representatives and shall have directed its financial advisors and outside legal counsel to engage in good faith negotiations with Company and its Representatives~~ (to the extent the Company wishes to negotiate) to ~~enable the Company to~~ make such ~~amendments~~ adjustments or revisions to the terms and conditions of this Agreement as would permit ~~the~~ Parent Board not to effect a Parent Change of Recommendation ~~or terminate this Agreement~~ in ~~connection with such Parent Superior Proposal,~~ response thereto; and (C2) at the end of ~~such~~ the five (5) Business Day period, ~~the~~ prior to taking action to effect a Parent Change of Recommendation, Parent Board ~~again makes the fiduciary determination under Section 5.6(d). With respect to Section 5.6(e)(ii),~~ takes into account any ~~material modifications~~ adjustments or revisions to the terms of this Agreement proposed by the Company in writing and any other information offered by the Company in response to the notice, and determines in good faith, after consultation with Parent’s financial advisor and outside legal counsel, that the failure to effect a Parent ~~Superior Proposal (including any change~~ Change of Recommendation in response to such Parent Intervening Event would be reasonably likely to be inconsistent with the fiduciary obligations owed by Parent Board to Parent’s stockholders under applicable Law; provided, that in the ~~amount or form~~ event of ~~consideration) after a~~ any material changes regarding any Parent ~~Superior Proposal Notice~~ Intervening Event, Parent shall ~~require~~ be required to deliver a new ~~Parent Superior Proposal Notice by Parent~~ written notice to the Company and to comply with the requirements of this Section 6.4(g) with respect to such new written notice, except that the advance written notice obligation set forth in ~~compliance with clause~~ this Section 6.4(g) shall be reduced to two (~~A), and shall commence a new notice period pursuant clause (A) of three (3~~2) Business Days. (f) Nothing contained in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including taking and disclosing to its shareholders a position a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids of the Canadian Securities Administrators and similar provisions under Canadian Securities Laws relating to the provision of directors’ circulars in respect of a Parent Alternative Proposal. For the avoidance of doubt, this Section 5.6(f) shall not permit the Company Board to make (or otherwise modify the definition of) a Company Change of Recommendation except to the extent expressly permitted by Section 5.6(d). (g) Further to Section 5.6(a), Parent shall (and shall cause its Subsidiaries and its and their respective directors and officers and shall use its reasonable best efforts to cause its other Representatives to) promptly terminate any existing discussions and negotiations conducted heretofore with any Person (other than the Company, Parent or any of their respective Affiliates or Representatives) with respect to any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result in a Parent Alternative Proposal. Further, Parent shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning Parent and any of its Subsidiaries and provide prompt written confirmation thereof.

Appears in 1 contract

Samples: Merger Agreement (Energen Corp)

No Solicitation by Parent. (a) ~~Subject to the provisions of~~ Except as expressly permitted by this Section ~~5.6, from the date of this Agreement until the earlier of the Effective Time and the Termination Date~~5.5, Parent ~~agrees that it shall not~~shall, ~~and~~ shall cause each of its ~~Subsidiaries~~ affiliates and its and their respective officers, directors and ~~officers not~~ employees to, and shall use its reasonable best efforts to cause its and ~~its Subsidiaries’~~ their other Representatives to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to or may reasonably be expected to lead to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not toalready done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 24-month period prior to the date of this Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives, and (ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (i1) solicit, initiate or knowingly ~~encourage~~ facilitate or knowingly ~~facilitate~~ encourage (including by way of furnishing non-public information) any ~~inquiry~~ inquiries regarding, or the making ~~or submission~~ of any ~~proposal,~~ proposal or offer ~~or indication of interest~~ that constitutes, or ~~would~~ could reasonably be expected to lead to, ~~or result in,~~ a ~~Parent Alternative~~ Takeover Proposal, (ii2) engage in~~, knowingly encourage~~, continue or otherwise participate in any discussions or negotiations ~~with any Person regarding Parent Alternative Proposal~~regarding, or furnish to any communications regarding or any inquiry, proposal or offer that would reasonably be expected to lead to, or result in, a Parent Alternative Proposal (except to notify such Person that the provisions of this Section 5.6 prohibit any such discussions or negotiations), (iii) furnish other person any non-public information ~~relating to Parent or its Subsidiaries~~ in connection with or for the purpose of ~~facilitating~~ encouraging or facilitating, a ~~Parent Alternative~~ Takeover Proposal ~~or any~~ (other than, solely in response to an unsolicited inquiry, ~~proposal, offer~~ to refer the inquiring person to this Section 5.5 and to limit its conversation or ~~indication of interest that would reasonably be expected~~ other communication exclusively to ~~lead to~~such referral), or ~~result in~~(3) approve, ~~a Parent Alternative Proposal and request the prompt return or destruction of any confidential information provided to any third party in connection with any Parent Alternative Proposal; (iv)~~ recommend or enter ~~into~~ into, or propose to approve, recommend or enter into, any ~~other~~ letter of ~~intent~~intent or similar document, ~~memorandum of understandings~~agreement, commitment or agreement in ~~principle~~principle (whether written or oral, ~~option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership agreement~~ binding or ~~other similar agreement~~ nonbinding) with respect to a ~~Parent Alternative~~ Takeover Proposal (~~except for confidentiality agreements permitted under~~ other than (x) an Acceptable Confidentiality Agreement in accordance with Section ~~5.6(b~~5.5(b) or (y) in accordance with Section 7.1(k))~~; (v) approve~~ . Except to the extent necessary to take any ~~transaction under,~~ actions that Parent or any third party ~~becoming an “interested stockholder” under~~ would otherwise be permitted to take pursuant to this Section ~~203~~ 5.5 (and in such case only in accordance with the terms hereof), (A) Parent and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which Parent or any of ~~the DGCL (or similar Takeover Statute applicable to Parent under Canadian Law);~~ its Subsidiaries is a party or (viy) ~~adopt~~any confidentiality provision in any agreement to which Parent or any of its Subsidiaries is a party other than, ~~approve~~with respect to this clause (y), ~~endorse~~any confidentiality provision, ~~authorize agree~~ the waiver, amendment, modification or ~~publicly propose~~ permission thereof does not, and would not be reasonably likely to, facilitate, encourage or relate in any way to ~~adopt~~a Takeover Proposal or a potential the Takeover Proposal and (B) Parent shall, ~~approve~~and shall cause its Subsidiaries to, ~~endorse~~ enforce such confidentiality and standstill provisions of any such agreement, and Parent shall, and shall cause its Subsidiaries to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any person other than the Company or ~~authorize to do~~ any of the ~~foregoing or otherwise knowingly facilitate~~ Company’s affiliates, under any ~~effort or attempt to make a Parent Alternative Proposal~~such provisions. (b) Notwithstanding anything ~~in this Section 5.6~~ to the ~~contrary~~contrary contained in Section 5.5(a), if at any time ~~prior to, but not after, obtaining~~ from and after the ~~Parent Shareholder Approval, if Parent receives a bona fide, unsolicited Parent Alternative Proposal in writing that did not result from a breach~~ date of this ~~Section 5.6 (which Parent Alternative Proposal is not withdrawn), Parent~~ Agreement and its Representatives may contact the third party making such Parent Alternative Proposal to clarify the terms and conditions thereof. If the Parent Board determines in good faith after consultation with Parent’s outside legal counsel and financial advisors that such Parent Alternative Proposal constitutes a Parent Superior Proposal or would reasonably be expected to result in a Parent Superior Proposal, then Parent may take the following actions: (i) furnish nonpublic information to the third party making such Parent Alternative Proposal (including its Representatives, including its equity and debt financing sources) in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has executed a confidentiality agreement with Parent (a copy of which shall be provided to the Company within 24 hours of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, prior to or substantially concurrently with the time such non-public information is provided or made available to such third party, any non-public information furnished to such third party that was not previously furnished to the Company; provided, however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. Parent shall promptly (and in any event within 24 hours) notify the Company in writing if: (i) any inquiries, proposals or offers with respect to a Parent Alternative Proposal are received by Parent or any of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, to the Knowledge of Parent, has been or is reasonably likely to have been made in connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions thereof (including the name of the applicable third party and, complete copies of any written requests, proposals or offers and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall keep the Company fully informed on a current basis of any material developments regarding any Parent Alternative Proposals or any material change to the terms of any such Parent Alternative Proposal and any material change to the status of any such discussions or negotiations with respect thereto. (c) Except as expressly permitted by Section 5.6(d), the Parent Board, including any committee thereof, shall not (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, the Parent Recommendation; (ii) fail to include the Parent Recommendation in the Management Information Circular that is mailed by Parent to the shareholders of Parent; (iii) if any Parent Alternative Proposal that is structured as a tender offer or exchange offer for the outstanding Parent Common Shares is commenced (other than by the Company or an Affiliate of the Company), fail to recommend and publicly announce, within ten (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by its shareholders; (iv) approve, adopt, recommend or declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal; (v) fail to publicly reaffirm the Parent Recommendation, within ten (10) Business Days after a Parent Alternative Proposal (or material modification thereto) is first publicly announced by Parent or the person making such Parent Alternative Proposal (or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days); (vi) approve, adopt or recommend, or declare advisable or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in and entered into compliance with Section 5.6(b)) with respect to any Parent Alternative Proposal; (vii) exempt any person other than the Company from any Takeover Statute or approve or authorize, or cause or permit Parent any of its Subsidiaries to enter into a Parent Acquisition Agreement, or (viii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”). (d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(e), prior to obtaining the Parent Shareholder Approval, (iParent or any of its Subsidiaries, or any of its or their Representatives, directly or indirectly receives a bona fide, unsolicited written Takeover Proposal from any person that did not result from Parent’s, its affiliates’ or Parent’s or its affiliates’ Representatives’ failure to comply with the provisions of Section 5.5(a) ~~the Parent Board may make a Parent Change of Recommendation in response to a Parent Intervening Event~~ and if the Parent Board ~~has determined,~~ determines in good ~~faith~~ faith, after consultation with ~~the Parent’s~~ its outside financial advisors and outside legal counsel, that ~~the failure~~ such Takeover Proposal constitutes or is reasonably likely to take such action would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to the Parent’s stockholders under applicable Law, or (ii) the Parent Board may, in response lead to a Parent Superior Proposal, (i) make a Parent Change of Recommendation and/or (ii) cause Parent to terminate this Agreement pursuant to Section 7.1(d)(ii) in order to enter into a Parent Acquisition Agreement that did not result from a breach of this Section 5.6 which Parent Acquisition Agreement the Parent Board determines, in good faith after consultation with Parent’s outside legal counsel and financial advisors, is a Parent Superior Proposal, but only if the Parent Board has determined in good faith after consultation with Parent’s outside legal counsel, that the failure make such a Parent Change of Recommendation and / or terminate this Agreement to enter into a Parent Acquisition Agreement providing for a Parent Superior Proposal would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to Parent’s shareholders under applicable Law. (e) Prior to Parent taking any action permitted under (i) Section 5.6(d)(i) in response to a Parent Intervening Event, the Parent shall provide Company with ten (10) Business Days’ prior written notice advising Company it intends to effect a Parent Change of Recommendation and specifying, in reasonable detail, the reasons therefor, and during such ten (10) Business Day period, the Parent shall cause its Representatives (including its executive officers) to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Parent Change of Recommendation and at the end of such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement proposed by Company), or (ii) Section 5.6(d)(ii) in response to a Parent Superior Proposal, (A) Parent shall provide the Company with five (5) Business Days’ prior written notice (a “Parent Superior Proposal Notice”) advising the Company that the Parent Board intends to take such action, which Parent Superior Proposal Notice shall include a description of the terms and conditions of the Parent Superior Proposal that is the basis for the proposed action of the Parent Board, the identity of the Person making the Parent Superior Proposal and a copy of any proposed definitive agreement for such Parent Superior Proposal, if any, and (B) Parent shall have negotiated in good faith with the Company and its Representatives and shall have directed its financial advisors and outside legal counsel to engage in good faith negotiations with Company and its Representatives (to the extent the Company wishes to negotiate) to enable the Company to make such amendments to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation or terminate this Agreement in connection with such Parent Superior Proposal, and (C) at the end of such five (5) Business Day period, the Parent Board again makes the fiduciary determination under Section 5.6(d). With respect to Section 5.6(e)(ii), any material modifications to the terms of the Parent Superior Proposal (including any change in the amount or form of consideration) after a Parent Superior Proposal Notice shall require a new Parent Superior Proposal Notice by Parent to the Company in compliance with clause (A), and shall commence a new notice period pursuant clause (A) of three (3) Business Days. (f) Nothing contained in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including taking and disclosing to its shareholders a position a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids of the Canadian Securities Administrators and similar provisions under Canadian Securities Laws relating to the provision of directors’ circulars in respect of a Parent Alternative Proposal. For the avoidance of doubt, this Section 5.6(f) shall not permit the Company Board to make (or otherwise modify the definition of) a Company Change of Recommendation except to the extent expressly permitted by Section 5.6(d). (g) Further to Section 5.6(a), Parent shall (and shall cause its Subsidiaries and its and their respective directors and officers and shall use its reasonable best efforts to cause its other Representatives to) promptly terminate any existing discussions and negotiations conducted heretofore with any Person (other than the Company, Parent or any of their respective Affiliates or Representatives) with respect to any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result in a Parent Alternative Proposal. Further, Parent shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning then Parent and any of its Subsidiaries, and any of its or their Representatives, may, directly or indirectly, (i) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to Parent and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, contracts, books and records of Parent and its Subsidiaries, to the person who has made such Takeover Proposal and its Representatives and potential sources of financing; provided that Parent shall substantially concurrently with the delivery to such person provide to the Company any non-public information concerning Parent or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to the Company and ~~provide prompt written confirmation thereof~~(ii) engage in or otherwise participate in discussions or negotiations with the person making such Takeover Proposal and its Representatives and potential sources of financing regarding such Takeover Proposal. As used in this Section 5.5, “Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less restrictive to the third party executing such agreement in the aggregate than those applicable to the Company that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by Parent with any of the provisions of this Section 5.5.

Appears in 1 contract

Samples: Merger Agreement (Atwood Oceanics Inc)

No Solicitation by Parent. (a) ~~Subject to the provisions of~~ Except as expressly permitted by this Section ~~5.6, from the date of this Agreement until the earlier of the Effective Time and the Termination Date~~5.5, Parent ~~agrees that it shall not~~shall, ~~and~~ shall cause each of its ~~Subsidiaries~~ affiliates and its and their respective officers, directors and ~~officers not~~ employees to, and shall use its reasonable best efforts to cause its and ~~its Subsidiaries’~~ their other Representatives to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to or may reasonably be expected to lead to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not toalready done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 24-month period prior to the date of this Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives, and (ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (i1) solicit, initiate or knowingly ~~encourage~~ facilitate or knowingly ~~facilitate~~ encourage (including by way of furnishing non-public information) any ~~inquiry~~ inquiries regarding, or the making ~~or submission~~ of any ~~proposal,~~ proposal or offer ~~or indication of interest~~ that constitutes, or ~~would~~ could reasonably be expected to lead to, ~~or result in,~~ a ~~Parent Alternative~~ Takeover Proposal, (ii2) engage in~~, knowingly encourage~~, continue or otherwise participate in any discussions or negotiations ~~with any Person regarding Parent Alternative Proposal~~regarding, or furnish to any communications regarding or any inquiry, proposal or offer that would reasonably be expected to lead to, or result in, a Parent Alternative Proposal (except to notify such Person that the provisions of this Section 5.6 prohibit any such discussions or negotiations), (iii) furnish other person any non-public information ~~relating to Parent or its Subsidiaries~~ in connection with or for the purpose of ~~facilitating~~ encouraging or facilitating, a ~~Parent Alternative~~ Takeover Proposal ~~or any~~ (other than, solely in response to an unsolicited inquiry, ~~proposal, offer~~ to refer the inquiring person to this Section 5.5 and to limit its conversation or ~~indication of interest that would reasonably be expected~~ other communication exclusively to ~~lead to~~such referral), or ~~result in~~(3) approve, ~~a Parent Alternative Proposal and request the prompt return or destruction of any confidential information provided to any third party in connection with any Parent Alternative Proposal; (iv)~~ recommend or enter ~~into~~ into, or propose to approve, recommend or enter into, any ~~other~~ letter of ~~intent~~intent or similar document, ~~memorandum of understandings~~agreement, commitment or agreement in ~~principle~~principle (whether written or oral, ~~option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership agreement~~ binding or ~~other similar agreement~~ nonbinding) with respect to a ~~Parent Alternative~~ Takeover Proposal (~~except for confidentiality agreements permitted under~~ other than (x) an Acceptable Confidentiality Agreement in accordance with Section ~~5.6(b~~5.5(b) or (y) in accordance with Section 7.1(k))~~; (v) approve~~ . Except to the extent necessary to take any ~~transaction under,~~ actions that Parent or any third party ~~becoming an “interested stockholder” under~~ would otherwise be permitted to take pursuant to this Section ~~203~~ 5.5 (and in such case only in accordance with the terms hereof), (A) Parent and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which Parent or any of ~~the DGCL (or similar Takeover Statute applicable to Parent under Canadian Law);~~ its Subsidiaries is a party or (viy) ~~adopt~~any confidentiality provision in any agreement to which Parent or any of its Subsidiaries is a party other than, ~~approve~~with respect to this clause (y), ~~endorse~~any confidentiality provision, ~~authorize agree~~ the waiver, amendment, modification or ~~publicly propose~~ permission thereof does not, and would not be reasonably likely to, facilitate, encourage or relate in any way to ~~adopt~~a Takeover Proposal or a potential the Takeover Proposal and (B) Parent shall, ~~approve~~and shall cause its Subsidiaries to, ~~endorse~~ enforce such confidentiality and standstill provisions of any such agreement, and Parent shall, and shall cause its Subsidiaries to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any person other than the Company or ~~authorize to do~~ any of the ~~foregoing or otherwise knowingly facilitate~~ Company’s affiliates, under any ~~effort or attempt to make a Parent Alternative Proposal~~such provisions. (b) Notwithstanding anything ~~in this Section 5.6~~ to the ~~contrary~~contrary contained in Section 5.5(a), if at any time ~~prior to, but not after, obtaining~~ from and after the ~~Parent Shareholder Approval, if Parent receives a bona fide, unsolicited Parent Alternative Proposal in writing that did not result from a breach~~ date of this ~~Section 5.6 (which Parent Alternative Proposal is not withdrawn), Parent~~ Agreement and its Representatives may contact the third party making such Parent Alternative Proposal to clarify the terms and conditions thereof. If the Parent Board determines in good faith after consultation with Parent’s outside legal counsel and financial advisors that such Parent Alternative Proposal constitutes a Parent Superior Proposal or would reasonably be expected to result in a Parent Superior Proposal, then Parent may take the following actions: (i) furnish nonpublic information to the third party making such Parent Alternative Proposal (including its Representatives, including its equity and debt financing sources) in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has executed a confidentiality agreement with Parent (a copy of which shall be provided to the Company within 24 hours of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, prior to or substantially concurrently with the time such non-public information is provided or made available to such third party, any non-public information furnished to such third party that was not previously furnished to the Company; provided, however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. Parent shall promptly (and in any event within 24 hours) notify the Company in writing if: (i) any inquiries, proposals or offers with respect to a Parent Alternative Proposal are received by Parent or any of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, to the Knowledge of Parent, has been or is reasonably likely to have been made in connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions thereof (including the name of the applicable third party and, complete copies of any written requests, proposals or offers and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall keep the Company fully informed on a current basis of any material developments regarding any Parent Alternative Proposals or any material change to the terms of any such Parent Alternative Proposal and any material change to the status of any such discussions or negotiations with respect thereto. (c) Except as expressly permitted by Section 5.6(d), the Parent Board, including any committee thereof, shall not (i) withdraw, withhold, qualify or modify, or propose publicly to withdraw, withhold, qualify or modify, the Parent Recommendation; (ii) fail to include the Parent Recommendation in the Management Information Circular that is mailed by Parent to the shareholders of Parent; (iii) if any Parent Alternative Proposal that is structured as a tender offer or exchange offer for the outstanding Parent Common Shares is commenced (other than by the Company or an Affiliate of the Company), fail to recommend and publicly announce, within ten (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by its shareholders; (iv) approve, adopt, recommend or declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal; (v) fail to publicly reaffirm the Parent Recommendation, within ten (10) Business Days after a Parent Alternative Proposal (or material modification thereto) is first publicly announced by Parent or the person making such Parent Alternative Proposal (or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days); (vi) approve, adopt or recommend, or declare advisable or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in and entered into compliance with Section 5.6(b)) with respect to any Parent Alternative Proposal; (vii) exempt any person other than the Company from any Takeover Statute or approve or authorize, or cause or permit Parent any of its Subsidiaries to enter into a Parent Acquisition Agreement, or (viii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”). (d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 5.6(e), prior to obtaining the Parent Shareholder Approval, (iParent or any of its Subsidiaries, or any of its or their Representatives, directly or indirectly receives a bona fide, unsolicited written Takeover Proposal from any person that did not result from Parent’s, its affiliates’ or Parent’s or its affiliates’ Representatives’ failure to comply with the provisions of Section 5.5(a) ~~the Parent Board may make a Parent Change of Recommendation in response to a Parent Intervening Event~~ and if the Parent Board ~~has determined,~~ determines in good ~~faith~~ faith, after consultation with ~~the Parent’s~~ its outside financial advisors and outside legal counsel, that ~~the failure~~ such Takeover Proposal constitutes or is reasonably likely to take such action would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to the Parent’s stockholders under applicable Law, or (ii) the Parent Board may, in response lead to a Parent Superior Proposal, (i) make a Parent Change of Recommendation and/or (ii) cause Parent to terminate this Agreement pursuant to Section 7.1(d)(ii) in order to enter into a Parent Acquisition Agreement that did not result from a breach of this Section 5.6 which Parent Acquisition Agreement the Parent Board determines, in good faith after consultation with Parent’s outside legal counsel and financial advisors, is a Parent Superior Proposal, but only if the Parent Board has determined in good faith after consultation with Parent’s outside legal counsel, that the failure make such a Parent Change of Recommendation and / or terminate this Agreement to enter into a Parent Acquisition Agreement providing for a Parent Superior Proposal would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to Parent’s shareholders under applicable Law. (e) Prior to Parent taking any action permitted under (i) Section 5.6(d)(i) in response to a Parent Intervening Event, the Parent shall provide Company with ten (10) Business Days’ prior written notice advising Company it intends to effect a Parent Change of Recommendation and specifying, in reasonable detail, the reasons therefor, and during such ten (10) Business Day period, the Parent shall cause its Representatives (including its executive officers) to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Parent Change of Recommendation and at the end of such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement proposed by Company), or (ii) Section 5.6(d)(ii) in response to a Parent Superior Proposal, (A) Parent shall provide the Company with five (5) Business Days’ prior written notice (a “Parent Superior Proposal Notice”) advising the Company that the Parent Board intends to take such action, which Parent Superior Proposal Notice shall include a description of the terms and conditions of the Parent Superior Proposal that is the basis for the proposed action of the Parent Board, the identity of the Person making the Parent Superior Proposal and a copy of any proposed definitive agreement for such Parent Superior Proposal, if any, and (B) Parent shall have negotiated in good faith with the Company and its Representatives and shall have directed its financial advisors and outside legal counsel to engage in good faith negotiations with Company and its Representatives (to the extent the Company wishes to negotiate) to enable the Company to make such amendments to the terms of this Agreement as would permit the Parent Board not to effect a Parent Change of Recommendation or terminate this Agreement in connection with such Parent Superior Proposal, and (C) at the end of such five (5) Business Day period, the Parent Board again makes the fiduciary determination under Section 5.6(d). With respect to Section 5.6(e)(ii), any material modifications to the terms of the Parent Superior Proposal (including any change in the amount or form of consideration) after a Parent Superior Proposal Notice shall require a new Parent Superior Proposal Notice by Parent to the Company in compliance with clause (A), and shall commence a new notice period pursuant clause (A) of three (3) Business Days. (f) Nothing contained in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including taking and disclosing to its shareholders a position a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids of the Canadian Securities Administrators and similar provisions under Canadian Securities Laws relating to the provision of directors’ circulars in respect of a Parent Alternative Proposal. For the avoidance of doubt, this Section 5.6(f) shall not permit the Company Board to make (or otherwise modify the definition of) a Company Change of Recommendation except to the extent expressly permitted by Section 5.6(d). (g) Further to Section 5.6(a), Parent shall (and shall cause its Subsidiaries and its and their respective directors and officers and shall use its reasonable best efforts to cause its other Representatives to) promptly terminate any existing discussions and negotiations conducted heretofore with any Person (other than the Company, Parent or any of their respective Affiliates or Representatives) with respect to any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result in a Parent Alternative Proposal. Further, Parent shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning then Parent and any of its Subsidiaries, and any of its or their Representatives, may, directly or indirectly, (i) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to Parent and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, contracts, books and records of Parent and its Subsidiaries, to the person who has made such Takeover Proposal and its Representatives and potential sources of financing; provided that Parent shall substantially concurrently with the delivery to such person provide to the Company any non-public information concerning Parent or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to the Company and ~~provide prompt written confirmation thereof.~~(ii) engage in or otherwise participate in discussions or negotiations with the person making such Takeover

Appears in 1 contract

Samples: Merger Agreement (Ensco PLC)

No Solicitation by Parent. (a) ~~Subject to the provisions of this Section 5.6, from~~ From the date of this Agreement until the earlier of the Effective Time and the ~~Termination Date~~valid termination of this Agreement in accordance with ‎Section 7.1, except as expressly permitted by this ‎Section 5.5, Parent agrees that neither it nor any of its Subsidiaries shall, and that it shall not, and shall cause its Subsidiaries and direct its and their respective ~~directors and officers not to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other~~ Representatives not to, directly or indirectly, (i) initiate, solicit, ~~initiate~~ knowingly assist, knowingly induce or knowingly encourage or ~~knowingly~~ facilitate (including by providing information) any ~~inquiry regarding~~inquiries, proposals or offers with respect to, or the ~~making~~ making, submission, announcement or ~~submission of~~ completion of, any ~~proposal,~~ proposal or offer ~~or indication of interest~~ that constitutes, or would be reasonably be expected to lead to, ~~or result in,~~ a Parent ~~Alternative Proposal,~~ Acquisition Proposal or (ii) engage in, ~~knowingly encourage,~~ continue or ~~otherwise~~ participate in any negotiations or discussions ~~or negotiations~~ with any Third Party (other than to refer the inquiring Person ~~regarding~~ to this ‎Section 5.5) concerning any Parent ~~Alternative Proposal, or any communications regarding~~ Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead ~~to, or result in, a~~ to any Parent ~~Alternative Proposal (except to notify such Person that the provisions of this Section 5.6 prohibit any such discussions or negotiations)~~Acquisition Proposal, (iii) furnish or provide or cause to be furnished or provided any non-public information or data relating to Parent or any of its Subsidiaries in connection ~~with~~ with, or for the purpose of ~~facilitating a Parent Alternative Proposal~~ soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, ~~proposal,~~ proposal or offer ~~or indication~~ that constitutes of ~~interest that~~ would reasonably be expected to lead toto a Parent Acquisition Proposal, or ~~result in, a Parent Alternative Proposal and request the prompt return or destruction of any confidential information provided to any third party in connection with any Parent Alternative Proposal;~~ (iv) ~~recommend~~ resolve or enter into any other letter of intent, memorandum of understandings, agreement in principle, option agreement, acquisition agreement, merger agreement, arrangement agreement, amalgamation agreement, joint venture agreement, partnership agreement or other similar agreement with respect to a Parent Alternative Proposal (except for confidentiality agreements permitted under Section 5.6(b)); (v) approve any transaction under, or any third party becoming an “interested stockholder” under Section 203 of the DGCL (or similar Takeover Statute applicable to Parent under Canadian Law); or (vi) adopt, approve, endorse, authorize agree ~~or publicly propose to adopt, approve, endorse or authorize~~ to do any of the ~~foregoing~~ foregoing. Parent agrees that it will, and will cause its Subsidiaries and direct its and their respective Representatives to, (x) immediately cease and cause to be terminated any existing activities, discussions or ~~otherwise knowingly facilitate~~ negotiations with any ~~effort~~ Third Party conducted heretofore with respect to any Parent Acquisition Proposal, (y) deliver a written notice to any such Third Party explicitly stating that Parent is terminating all discussions and negotiations with such Third Party with respect to any Parent Acquisition Proposal, and requesting that such Third Party promptly return or ~~attempt~~ destroy all confidential or proprietary information concerning Parent and its Subsidiaries, and (z) promptly terminate access of any such Third Party to ~~make~~ any due diligence or electronic or physical data room with respect to any Parent Acquisition Proposal; provided, that nothing in this Agreement shall restrict Parent from permitting a ~~Parent Alternative Proposal~~Person to request the waiver of a “standstill” or similar obligation or from granting such a waiver, in each case to the extent necessary to comply with fiduciary duties under applicable Law. (b) Notwithstanding anything ~~in this Section 5.6~~ to the ~~contrary~~contrary in ‎Section 5.5(a), at any time prior ~~to, but not after,~~ to obtaining the Parent ~~Shareholder~~ Stockholder Approval, if in response to an unsolicited bona fide written Parent ~~receives~~ Acquisition Proposal from a ~~bona fide, unsolicited Parent Alternative Proposal in writing~~ Third Party made after the date hereof that (x) did not result from a material breach of ~~this Section 5.6~~ ‎Section 5.5(a) or ‎Section 5.5(c) by Parent, any of its Subsidiaries or any of its or their respective Representatives, and (which Parent Alternative Proposal is not withdrawn), Parent and its Representatives may contact the third party making such Parent Alternative Proposal to clarify the terms and conditions thereof. If the y) Parent Board determines in good ~~faith~~ faith, after consultation with Parent’s outside legal counsel and its financial ~~advisors that such Parent Alternative Proposal~~ advisor, constitutes or may reasonably be expected to lead to a Parent Superior Proposal and that failure to engage in such discussions or negotiations, or provide such information, would reasonably be expected to ~~result~~ be inconsistent with Parent Board’s fiduciary duties to Parent and its stockholders under applicable Law, Parent and its Representatives may, following receipt of an executed customary confidentiality agreement with nondisclosure provisions that are at least as restrictive of such Third Party as the Confidentiality Agreement (except for such changes specifically necessary in a order for Parent ~~Superior Proposal, then~~ to be able to comply with its obligations under this Agreement) and that does not prohibit compliance by Parent ~~may take the following actions:~~ with this ‎Section 5.5(b) (i) furnish ~~nonpublic~~ information with respect to ~~the third party~~ Parent and its Subsidiaries such Third Party making such Parent ~~Alternative~~ Acquisition Proposal and (~~including~~ ii) participate in discussions or negotiations with such Third Party and its ~~Representatives~~Representatives regarding such Parent Acquisition Proposal; provided, ~~including~~ that Parent shall promptly (and in no event later than 24 hours after its ~~equity and debt financing sources~~receipt of such Parent Acquisition Proposal) ~~in response to a request therefor, if, and only if, (A) prior to so furnishing such information the third party has executed a confidentiality agreement with Parent (a copy of which shall be provided~~ provide or make available to the Company ~~within 24 hours~~ any material non-public information concerning Parent or any of execution) having confidentiality and use provisions that, in each case, are not less restrictive to such third party than the provisions in the Confidentiality Agreement are to the Company (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Parent Alternative Proposal, but such confidentiality agreement shall not grant such third party the exclusive right to negotiate with Parent), and (B) Parent also provides to the Company, its Subsidiaries prior to or substantially concurrently with the ~~time~~ provision of such ~~non-public~~ information is to the Person making such Parent Acquisition Proposal or its Representatives which was not previously provided or made available to ~~such third party, any non-public information furnished to such third party that was not previously furnished to~~ the Company~~; provided~~. If Parent receives a Parent Acquisition Proposal, however, that if the third party making such Parent Alternative Proposal is a known competitor of the Company or Parent, Parent shall not provide any commercially sensitive non-public information to such third party in connection with any actions permitted by this Section 5.6(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, and (ii) engage in discussions or negotiations with the third party (including its Representatives) with respect to the Parent Alternative Proposal. then Parent shall promptly (and in ~~any~~ no event ~~within~~ later than 24 ~~hours~~hours after its receipt of such Parent Acquisition Proposal) notify the Company in writing ~~if:~~ of such Parent Acquisition Proposal (i) which notification shall include the identity of the Person making or submitting such request or Parent Acquisition Proposal and an unredacted copy of any ~~inquiries~~such written request or proposal (or, ~~proposals or offers with respect to~~ if not in writing, a ~~Parent Alternative Proposal are received by Parent or any~~ written summary of its Representatives or (ii) any information is requested from Parent or any of its Representatives that, to the Knowledge of Parent, has been or is reasonably likely to have been made in connection with any Parent Alternative Proposal, which notice shall identify the material terms and conditions ~~thereof (including the name of the applicable third party and~~thereof)), ~~complete~~ together with copies of any ~~written requests~~proposed transaction agreements, ~~proposals or offers~~ and any other material documents, including proposed agreements). It is understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.6(b), including any public announcement that Parent or the Parent Board has made any determination contemplated under this Section 5.6(b) to take or engage in any such actions, shall not constitute a Parent Change of Recommendation or otherwise constitute a basis for the Company to terminate this Agreement pursuant to Section 7.1. Parent shall thereafter keep the Company ~~fully~~ reasonably informed in writing, on a current basis (and, in any event, within 24 hours), of ~~any material developments regarding any~~ the status of such Parent ~~Alternative Proposals or~~ Acquisition Proposal, including informing the Company of any material change to the terms of ~~any~~ such Parent ~~Alternative Proposal~~ Acquisition Proposal, and ~~any material change to~~ the status of any ~~such discussions or negotiations with respect thereto~~negotiations, including any change in its intentions as previously notified. (c) ~~Except as expressly~~ Subject to the permitted actions contemplated by ~~Section 5.6(d~~clauses ‎(d) and ‎(e) below, and ‎Section 7.1(d)(ii), neither the Parent ~~Board, including~~ Board nor any committee ~~thereof,~~ thereof shall ~~not~~ (i) withdraw, change, qualify, withhold, ~~qualify~~ amend or ~~modify~~modify in a manner adverse to the Company, or publicly propose ~~publicly~~ to withdraw, change, qualify, withhold, ~~qualify~~ amend or ~~modify~~modify in a manner adverse to the Company, the Parent Board Recommendation; , (ii) adopt, approve, recommend, or publicly propose to adopt, approve or recommend, any Parent Acquisition Proposal or Parent Alternative Acquisition Agreement, (iii) fail to include the Parent Board Recommendation in the ~~Management Information Circular that is mailed by Parent to~~ Joint Proxy Statement/Prospectus, (iv) in the ~~shareholders of Parent; (iii) if any Parent Alternative Proposal that is structured as~~ event a tender offer ~~or exchange offer for~~ that constitutes a Parent Acquisition Proposal subject to Regulation 14D under the ~~outstanding Parent Common Shares~~ Exchange Act is ~~commenced (other than by the Company or an Affiliate of the Company)~~commenced, fail to recommend ~~and publicly announce,~~ against such Parent Acquisition Proposal in any solicitation or recommendation statement made on Schedule 14D09 within ~~ten~~ (10) Business Days ~~after such commencement, against acceptance~~ of such ~~tender offer~~ commencement (and in no event later than one (1) Business Day prior to the date of the Parent Stockholder Meeting, as it may be postponed or ~~exchange offer by its shareholders; (iv~~adjourned pursuant to ‎Section 5.6(c)) ~~approve, adopt, recommend~~ or ~~declare advisable any Parent Alternative Proposal or publicly propose to approve, adopt or recommend, or declare advisable any Parent Alternative Proposal;~~ (v) if requested by the Company, fail to ~~publicly reaffirm the Parent Recommendation~~issue, within ten (10) Business Days after a Parent ~~Alternative~~ Acquisition Proposal ~~(or material modification thereto)~~ is ~~first~~ publicly announced ~~by Parent or the person making such Parent Alternative Proposal~~ (~~or, with respect to any material amendments, revisions or changes to the terms of any such previously publicly disclosed Parent Alternative Proposal that are publicly disclosed within the last five~~ and in no event later than one (51) Business ~~Days~~ Day prior to the ~~Effective Time~~date of the Parent Stockholder Meeting, ~~fail~~ as it may be postponed or adjourned pursuant to ~~take the actions referred to in this clause (v~~‎Section 5.6(c)), ~~with references to~~ a press release reaffirming the ~~applicable ten~~ Parent Board Recommendation (~~10) Business Day period being replaced with three~~ any of such action in clauses (~~3) Business Days~~i)-(v), a “Parent Adverse Recommendation Change”); (vi) ~~approve, adopt~~ cause or ~~recommend,~~ permit Parent or ~~declare advisable~~ any of its Subsidiaries to enter into or ~~enter into,~~ agree to any letter of intent, memorandum of ~~understanding~~understanding or similar document, agreement in principle, acquisition agreement, merger agreement, ~~option agreement, joint venture agreement, partnership~~ or other similar agreement or ~~other agreement~~ commitment (other than a confidentiality agreement referred to in ~~and~~ ‎Section 5.5(b) entered into in compliance with ~~Section 5.6(b~~‎Section 5.5(b)) ~~with respect~~ relating to any Parent Acquisition Proposal (a “Parent Alternative ~~Proposal;~~ Acquisition Agreement”) or (vii) exempt any person other than the Company from any Takeover Statute or approve or authorize, or cause or permit Parent any of its Subsidiaries to enter into a Parent Acquisition Agreement, or (viii) resolve or publicly propose to take any action ~~described in~~ to make the ~~foregoing clauses~~ provisions of any anti-takeover or similar statute or regulation inapplicable to any Parent Acquisition Proposal or counterparty thereto; provided, that delivery of a written notice to the Company as contemplated by paragraph ‎(d) below, or public disclosure that such notice has been delivered to the Company, shall not be deemed to constitute a Parent Adverse Recommendation Change or otherwise a violation of this clause (~~i) through (vii) (any such action set forth in the foregoing clauses (i) through (ix), a “Parent Change of Recommendation”~~c). (d) Notwithstanding anything to the contrary set forth in this ~~Agreement~~‎Section 5.5, ~~but subject to Section 5.6(e), prior to obtaining the Parent Shareholder Approval, (i) the Parent Board may make~~ following receipt of a Parent Change of Recommendation in response to a Parent Intervening Event if the Parent Board has determined, in good faith after consultation with the Parent’s outside legal counsel, that the failure to take such action would breach or would reasonably be expected to breach the Parent Board’s fiduciary duties to the Parent’s stockholders under applicable Law, or (ii) the Parent Board may, in response to a Parent Superior Proposal, (i) make a Parent Change of Recommendation and/or (ii) cause Parent to terminate this Agreement pursuant to Section 7.1(d)(ii) in order to enter into a written Parent Acquisition Proposal by Parent after the date of this Agreement that did not result from a breach of this ~~Section 5.6 which Parent Acquisition Agreement~~ ‎Section 5.5 and has not been withdrawn the Parent Board ~~determines~~may, ~~in good faith after consultation with Parent’s outside legal counsel and financial advisors~~at any time prior to the Parent Stockholders Meeting, is make a Parent ~~Superior Proposal, but only if the~~ Adverse Recommendation Change and authorize Parent ~~Board has determined in good faith after consultation with Parent’s outside legal counsel, that the failure make such a Parent Change of Recommendation and / or~~ to terminate this Agreement to enter into a Parent Alternative Acquisition Agreement ~~providing for~~ with respect to such Parent Superior Proposal in accordance with ‎Section 7.1(d)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the following conditions are met prior to making such Parent Adverse Recommendation Change: (i) the Parent Board determines in good faith, after consultation with the Parent’s outside legal counsel and its financial advisor, that such Parent Acquisition Proposal constitutes a Parent Superior Proposal ~~would breach or~~ and that failure to take such action would reasonably be expected to ~~breach~~ be inconsistent with the Parent Board’s fiduciary duties to ~~Parent’s shareholders~~ its stockholders under applicable Law; (ii) (A) Parent shall have provided to the Company five Business Days’ prior written notice (the “Parent Superior Proposal Notice”), which shall state expressly (1) that it has received a written Parent Acquisition Proposal that constitutes a Parent Superior Proposal, (2) an unredacted copy of such Parent Acquisition Proposal (or, if not in writing, the material terms and conditions thereof including the consideration offered therein and the identity of the Person or group making the Parent Acquisition Proposal) and shall have contemporaneously provided an unredacted copy of the Parent Alternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Parent Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Parent Superior Proposal shall require a new notice and an additional two Business Day period) and (3) that, subject to clause ‎(iii) below, the Parent Board has determined to make an Parent Adverse Recommendation Change or to terminate this Agreement in accordance with ‎Section 7.1(d)(ii) in order to enter into the Parent Alternative Acquisition Agreement, as applicable and (B) prior to making such Parent Adverse Recommendation Change or terminating this Agreement in accordance with ‎Section 7.1(d)(ii), as applicable, (x) Parent shall have used commercially reasonable efforts to engage in good faith with the Company (to the extent the Company wishes to engage) during such notice period commencing on the delivery of the Parent Superior Proposal Notice, to consider any adjustments proposed by the Company to the terms and conditions of this Agreement such that the Parent Alternative Acquisition Agreement ceases to constitute a Parent Superior Proposal and (y) in determining whether to make a Parent Adverse Recommendation Change or to effect a termination in accordance with ‎Section 7.1(d)(ii), the Parent Board shall have taken into account any changes to the terms of this Agreement proposed by the Company and any other information provided by the Company in response to such notice; and (iii) following the end of such five Business Day period (as such period may be extended in accordance with clause ‎(ii) above), the Parent Board shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that, in light of such Parent Superior Proposal and taking into account any revised terms proposed by the Company, such Parent Superior Proposal continues to constitute a Parent Superior Proposal and that the failure to make such Parent Adverse Recommendation Change or to so terminate this Agreement in accordance with ‎Section 7.1(d)(ii), as applicable, would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law. (e) ~~Prior~~ Notwithstanding anything to ~~Parent taking~~ the contrary set forth in this ‎Section 5.5, upon the occurrence of any ~~action permitted under (i) Section 5.6(d)(i) in response to a~~ Parent Intervening Event, the Parent Board may, at any time prior to the Parent Stockholders Meeting, make a Parent Adverse Recommendation Change that is not related to a Parent Acquisition Proposal if all of the following conditions are met: (i) prior to making such Parent Adverse Recommendation Change, (1) the Parent Board determines in good faith, after consultation with its outside legal counsel and its financial advisor, that, in light of such Parent Intervening Event, a failure to effect a Parent Adverse Recommendation Change would be reasonably expected to be inconsistent with the Parent Board’s fiduciary duties to its stockholders under applicable Law, (2) Parent shall ~~provide~~ have (A) provided to the Company ~~with ten (10)~~ five Business Days’ prior written ~~notice advising Company it intends to effect a Parent Change of Recommendation and specifying~~notice, which shall (1) set forth in reasonable ~~detail~~detail information describing the Parent Intervening Event and the rationale for the Parent Adverse Recommendation Change and (2) state expressly that, ~~the reasons therefor, and during such ten (10~~subject to clause ‎(ii) ~~Business Day period~~below, the Parent ~~shall cause its Representatives (including its executive officers)~~ Board has determined to be available to negotiate in good faith (to the extent Company desires to negotiate) any proposal by Company to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect make a Parent Adverse Recommendation Change of Recommendation and at the end of such ten (10) Business Day period the Parent Board again makes the fiduciary determination under Section 5.6(d)(i) (after in good faith taking into account any amendments to this Agreement proposed by Company), or (ii) Section 5.6(d)(ii) in response to a Parent Superior Proposal, (A) Parent shall provide the Company with five (5) Business Days’ prior written notice (a “Parent Superior Proposal Notice”) advising the Company that the Parent Board intends to take such action, which Parent Superior Proposal Notice shall include a description of the terms and conditions of the Parent Superior Proposal that is the basis for the proposed action of the Parent Board, the identity of the Person making the Parent Superior Proposal and a copy of any proposed definitive agreement for such Parent Superior Proposal, if any, and (B) prior to making such a Parent ~~shall have negotiated~~ Adverse Recommendation Change, used commercially reasonable efforts to engage in good faith with the Company ~~and its Representatives and shall have directed its financial advisors and outside legal counsel to engage in good faith negotiations with Company and its Representatives~~ (to the extent the Company wishes to ~~negotiate~~engage) during such five Business Day period to ~~enable~~ consider any adjustments proposed by the Company to ~~make such amendments to~~ the terms and conditions of this Agreement ~~as would permit~~ such that the failure of the Parent Board ~~not~~ to ~~effect~~ make a Parent Adverse Recommendation Change ~~of Recommendation or terminate this Agreement~~ in ~~connection~~ response to the Parent Intervening Event in accordance with ~~such Parent Superior Proposal, and~~ clause ‎(ii) below would no longer reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law; and (Cii) at following the end of such five ~~(5)~~ Business Day period, the Parent Board ~~again makes~~ shall have determined in good faith, after consultation with its outside legal counsel, that in light of such Parent Intervening Event and taking into account any revised terms proposed by the ~~fiduciary determination under Section 5.6(d). With respect~~ Company, the failure to ~~Section 5.6(e)(ii), any material modifications to the terms of the Parent Superior Proposal (including any change in the amount or form of consideration) after~~ make a Parent ~~Superior Proposal Notice shall require a new Parent Superior Proposal Notice by Parent~~ Adverse Recommendation Change would reasonably be expected to be inconsistent with the ~~Company in compliance with clause (A), and shall commence a new notice period pursuant clause (A) of three (3) Business Days~~directors’ fiduciary duties under applicable Law. (f) Parent promptly (and in any event within 48 hours) shall advise the Company orally and in writing of (i) any written Parent Acquisition Proposal, (ii) any written request for non-public information relating to Parent or its Subsidiaries, other than requests for information not reasonably expected to be related to a Parent Acquisition Proposal and (iii) any written inquiry or request for discussion or negotiation regarding a Parent Acquisition Proposal, including in each case the identity of the Person making any such Parent Acquisition Proposal, inquiry or request and the material terms of any such Parent Acquisition Proposal, inquiry or request and thereafter shall keep the Company informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. (g) Nothing ~~contained~~ set forth in this Agreement shall ~~prohibit~~ prevent Parent or the Parent Board ~~or any committee thereof~~ from (i) ~~complying with its disclosure obligations under applicable Law or rules and policies of the TSX, including~~ taking and disclosing to its ~~shareholders~~ stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a ~~“stop, look and listen” statement pending disclosure of its position thereunder,~~ tender offer or exchange offer) or from (ii) ~~complying with Part 2 – Division 1 of National Instrument 62-104 – Take-Over Bids and Issuer Bids~~ making any required disclosure to Parent’s stockholders if, in the good faith judgment of the ~~Canadian Securities Administrators and similar provisions~~ Parent Board, after consultation with outside counsel, failure to disclose such information would reasonably be expected to violate its obligations under ~~Canadian Securities Laws relating to~~ applicable Law; provided, however, that in the ~~provision~~ case of ~~directors’ circulars in respect of~~ either clause (i) or clause (ii), no such communication or statement that would constitute a Parent ~~Alternative Proposal. For the avoidance of doubt~~Adverse Recommendation Change shall be permitted, ~~this Section 5.6(f) shall not permit the Company Board to make (~~made or ~~otherwise modify the definition of) a Company Change of Recommendation~~ taken except ~~to the extent expressly permitted by Section 5.6(d~~in accordance with ‎Section 5.5(d). (gh) ~~Further to Section 5.6(a)~~Any breach of the restrictions contained in this ‎Section 5.5 by any of the Parent’s Subsidiaries, ~~Parent shall (and shall cause its Subsidiaries and its and their respective directors and officers and shall use its reasonable best efforts to cause its other~~ or any Representatives ~~to) promptly terminate any existing discussions and negotiations conducted heretofore with any Person (other than~~ of the ~~Company,~~ Parent or any of ~~their respective Affiliates or Representatives~~its Subsidiaries, shall be deemed to be a breach of this ‎Section 5.5 by Parent. (i) ~~with respect to any Parent Alternative Proposal, or proposal or transaction that could reasonably be expected to lead to or result~~ As used in a Parent Alternative Proposal. Further, Parent shall promptly terminate all physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning Parent and any of its Subsidiaries and provide prompt written confirmation thereof.this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Spectrum Pharmaceuticals Inc)

Common use of No Solicitation by Parent Clause in Contracts