Solicitation of Acquisition Proposals. (a) Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 11:59 pm (Eastern time) on the date that is twenty (20) calendar days from the date hereof (such date, the “No-Shop Start Date”), the Company and its Representatives may directly or indirectly: (i) initiate, solicit or encourage the submission of Acquisition Proposals from one or more persons, including by way of providing access to non-public information pursuant to the prior execution of a confidentiality agreement not materially less restrictive of the other party than the confidentiality restrictions that the Parent is subject to with respect to the information provided by the Company; provided, that the Company shall simultaneously provide to Parent any non-public information concerning the Company that is provided to any such person or its Representatives which was not previously provided to Parent; and (ii) participate in discussions or negotiations regarding, and take any other action to facilitate any inquiries or the making of, any proposal that constitutes, or may reasonably be expected to lead to an Acquisition Proposal. (b) Subject to the provisions of this Section 4.13, following the No-Shop Start Date, the Company shall immediately cease or cause to be terminated any activities that would otherwise be a violation of the restrictions set forth in this subsection (b) conducted theretofore by the Company or its Representatives with respect to any Acquisition Proposal; provided, however that notwithstanding such restrictions the Company may continue discussions or negotiations with any person pursuant to and in accordance with this Section 4.13 that has made an Acquisition Proposal on or prior to the No-Shop Start Date if the Company’s Board of Directors determines in good faith (after consultation with outside counsel and financial advisors) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal. Except as set forth in this Section 4.13, the Company agrees that none of the Company, any Company Subsidiary or any of the officers and directors of the Company or the Company Subsidiaries shall, and that it shall cause its and the Company Subsidiaries’ employees, agents and representatives (including any investment bankers, attorneys or accountants retained by it or any Company Subsidiary) not to, directly or indirectly, (1) initiate, solicit or take any action to knowingly facilitate or encourage the submission of any inquiry, proposal or offer with respect to, or any transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving the Company or any Company Subsidiary, or any purchase or sale of the assets of the Company (including stock of the Company Subsidiaries), or any purchase or sale of, or tender or exchange offer for, the Company’s equity securities (any such inquiry, proposal, offer or transaction, an “Acquisition Proposal”), (2) have any discussion with or provide or cause to be provided any non-public information to any person relating to an Acquisition Proposal, or engage or participate in any negotiations concerning an Acquisition Proposal, (3) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (4) approve, endorse or recommend, propose publicly to approve, endorse or recommend, or execute or enter into, any letter of intent, option agreement, agreement in principle, merger agreement, acquisition agreement or other similar agreement, or agree to do any of the foregoing related to any Acquisition Proposal. (c) Notwithstanding anything in this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, the Company or the Company Board may (1) engage or participate in negotiations or discussions with, or provide or cause to be provided any information to, any person in response to an Acquisition Proposal that did not result from a breach of Sections 4.13(a) and 4.13(b) if (A) the Company’s Board concludes in good faith, after consultation with its outside counsel and financial advisors, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) prior to providing any non-public information to any person in connection with an Acquisition Proposal by any such person, the Company receives from such person an executed confidentiality agreement having provisions that are no less restrictive than the confidentiality obligations of the Parent with respect to the information provided by the Company; provided, however, that the Company shall promptly provide or make available to Parent any non-public information concerning the Company or any Company Subsidiary that is provided to the person making such Acquisition Proposal or such person’s representatives that was not previously provided or made available to Parent or its representatives, or (2) fail to make, withdraw, modify or qualify (or publicly propose to withdraw, modify or qualify) the Company Board Recommendation or approve or recommend (or publicly propose to approve or recommend) any Acquisition Proposal or letter of intent, agreement in principle, acquisition agreement or similar agreement providing for any Acquisition Proposal (a “Change in the Company Board Recommendation”) if the Company has complied in good faith with its obligations under Sections 4.13 (a) and 4.13(b), and if (a) the Company Board of Directors concludes in good faith, after consultation with its outside counsel and financial advisors, that a Change in the Company Board Recommendation is necessary in order to comply with its fiduciary obligations or (b) the Company has received an Acquisition Proposal that has not been withdrawn and the Company Board concludes in good faith (1) that such Acquisition Proposal constitutes a Superior Proposal and (2) after consultation with its outside counsel and financial advisors, that a Change in the Company Board Recommendation is necessary in order to comply with its fiduciary obligations; provided, however, that no Change in the Company Board Recommendation may be made (y) until the fourth day after Parent’s receipt of written notice (a “Notice of Intended Change in the Company Board Recommendation”) from the Company advising Parent that the Company Board intends to make a Change in the Company Board Recommendation and specifying the material terms and conditions of any Superior Proposal that is related to such Change in the Company Board Recommendation and (z) unless Parent has not proposed, within three days after its receipt of the Notice of Intended Change in the Company Board Recommendation, such adjustment to the terms and conditions of this Agreement as would enable the Company Board, acting in good faith and after consultation with its outside counsel and financial advisors, to proceed with the Company Board Recommendation. Notwithstanding anything in this Agreement to the contrary, disclosure by the Company of any Acquisition Proposal and the operation of this Agreement with respect thereto shall not be deemed to be a Change in the Company Board Recommendation. “Superior Proposal” means an Acquisition Proposal that the Company Board concludes, in good faith and after consultation with its outside counsel and financial advisors, is (I) reasonably capable of being completed, (II) reasonably capable of being fully financed and (III) more favorable to the holders of the Shares (in their capacity as stockholders) than the transactions provided for in this Agreement, taking into account, among other things, the likelihood and timing of consummation, the termination fee payable under this Agreement to Parent in connection with the acceptance of such Superior Proposal, any proposal or offer by Parent to amend the terms of this Agreement and the Merger and such other factors deemed relevant by the Company Board.
Appears in 1 contract
Sources: Merger Agreement (Otix Global, Inc.)
Solicitation of Acquisition Proposals. (a) Notwithstanding any other provision of this Agreement anything to the contrarycontrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 pm (p.m. Eastern time) Time on the date that is twenty (20) 40th calendar days from day after the date hereof of this Agreement (such date, the “No-Shop Period Start Date”), the Company Acquired Corporations and its their respective Representatives may directly or indirectlyshall have the right to: (i) initiate, solicit solicit, facilitate, induce and encourage any inquiry or encourage the making, submission or announcement of any proposals or offers that constitute Acquisition Proposals from one or more personsProposals, including by way of providing access to non-public nonpublic information to any Person pursuant to the prior execution of a confidentiality agreement not materially less restrictive of the other party than the confidentiality restrictions that the Parent is subject to agreements on terms with respect to confidentiality not more favorable to such Person than those contained in the information provided by Confidentiality Agreement, dated as of April 28, 2010, between the CompanyCompany and Parent (the “Confidentiality Agreement”); provided, however, that the Company shall simultaneously provide promptly (and in any event within 24 hours thereafter) make available to Parent and Merger Sub any non-public nonpublic information concerning the Acquired Corporations that the Company that is provided provides to any Person given such person or its Representatives which access that was not previously provided made available to Parent; Parent or Merger Sub, and (ii) engage or enter into, continue or otherwise participate in any discussions or negotiations regardingwith any Persons or groups of Persons with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals.
(b) Except as expressly permitted by this Section 5.3, from the No-Shop Period Start Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with Section 7.1, the Company shall not directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to (except that the Company may take actions described in clauses (ii) and (iii) in connection with the continuation of discussions with any Person who shall have submitted an Acquisition Proposal prior to the No-Shop Period Start Date), (i) solicit, initiate or knowingly encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal or take any other action to facilitate any inquiries or the making of, any proposal that constitutes, or may would reasonably be expected to lead to an Acquisition Proposal.
, (bii) Subject furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any Acquisition Agreement; provided, however, that prior to the provisions adoption of this Agreement by the Required Company Stockholder Vote, this Section 4.13, following the No-Shop Start Date, 5.3(b) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Proposal or an Acquisition Proposal that is reasonably likely to result in a Superior Proposal if (1) neither the Company nor any Representative of any of the Acquired Corporations shall immediately cease or cause to be terminated have knowingly and intentionally violated, in any activities that would otherwise be a violation material respect, any of the restrictions set forth in this subsection (b) conducted theretofore by the Company or its Representatives with respect to any Acquisition Proposal; provided, however that notwithstanding such restrictions the Company may continue discussions or negotiations with any person pursuant to and in accordance with this Section 4.13 that has made an Acquisition Proposal on or prior to the No-Shop Start Date if the Company’s Board of Directors determines in good faith (after consultation with outside counsel and financial advisors) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal. Except as set forth in this Section 4.13, the Company agrees that none of the Company, any Company Subsidiary or any of the officers and directors of the Company or the Company Subsidiaries shall, and that it shall cause its and the Company Subsidiaries’ employees, agents and representatives (including any investment bankers, attorneys or accountants retained by it or any Company Subsidiary) not to, directly or indirectly, (1) initiate, solicit or take any action to knowingly facilitate or encourage the submission of any inquiry, proposal or offer with respect to, or any transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving the Company or any Company Subsidiary, or any purchase or sale of the assets of the Company (including stock of the Company Subsidiaries), or any purchase or sale of, or tender or exchange offer for, the Company’s equity securities (any such inquiry, proposal, offer or transaction, an “Acquisition Proposal”)5.3, (2) have any discussion with or provide or cause to be provided any non-public information to any person relating to an Acquisition Proposal, or engage or participate in any negotiations concerning an Acquisition Proposal, (3) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (4) approve, endorse or recommend, propose publicly to approve, endorse or recommend, or execute or enter into, any letter of intent, option agreement, agreement in principle, merger agreement, acquisition agreement or other similar agreement, or agree to do any of the foregoing related to any Acquisition Proposal.
(c) Notwithstanding anything in this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, the Company or the Company Board may (1) engage or participate in negotiations or discussions with, or provide or cause to be provided any information to, any person in response to an Acquisition Proposal that did not result from a breach of Sections 4.13(a) and 4.13(b) if (A) the Company’s Board concludes in good faith, after consultation with its outside counsel and financial advisorslegal counsel, that such Acquisition Proposal constitutes or action is reasonably likely to lead to a Superior Proposal and (B) prior to providing any non-public information to any person required in connection with an Acquisition Proposal by any such person, the Company receives from such person an executed confidentiality agreement having provisions that are no less restrictive than the confidentiality obligations of the Parent with respect to the information provided by the Company; provided, however, that the Company shall promptly provide or make available to Parent any non-public information concerning the Company or any Company Subsidiary that is provided to the person making such Acquisition Proposal or such person’s representatives that was not previously provided or made available to Parent or its representatives, or (2) fail to make, withdraw, modify or qualify (or publicly propose to withdraw, modify or qualify) order for the Company Board Recommendation or approve or recommend (or publicly propose to approve or recommend) any Acquisition Proposal or letter of intent, agreement in principle, acquisition agreement or similar agreement providing for any Acquisition Proposal (a “Change in the Company Board Recommendation”) if the Company has complied in good faith with its obligations under Sections 4.13 (a) and 4.13(b), and if (a) the Company Board of Directors concludes in good faith, after consultation with its outside counsel and financial advisors, that a Change in the Company Board Recommendation is necessary in order to comply with its fiduciary obligations to the Company’s stockholders under applicable Law, (3) at least 24 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) at least 24 hours prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished or made available by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 5.3 by the Company.
(c) From the date of this Agreement and until the No-Shop Period Start Date, the Company shall advise Parent orally and in writing of the receipt by the Company of any written Acquisition Proposal, or a material modification to such written Acquisition Proposal, no later than two Business Days after the receipt of such written Acquisition Proposal or material modification thereto and shall keep Parent reasonably informed with respect to the status of any such Acquisition Proposal and any modification or proposed modification thereto. From and after the No-Shop Period Start Date, the Company shall promptly (and in no event later than two Business Days after receipt of any Acquisition Proposal, any inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, or indication of interest, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. From and after the No-Shop Period Start Date, the Company shall keep Parent reasonably informed with respect to the status of any such Acquisition Proposal, inquiry or indication of interest and any modification or proposed modification thereto.
(d) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Corporations is a party, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent. The Company also will promptly request each Person that has executed, within 12 months prior to the date of this Agreement, a confidentiality agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return or destroy all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations and will use its commercially reasonable efforts to enforce or cause to be enforced any obligation to do so.
(e) Except as expressly provided by Section 5.3(f), at any time after the date hereof (whether before or after the No-Shop Period Start Date), neither the Company Board nor any committee thereof shall: (i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Board Recommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (C) after the public announcement of the submission of an Acquisition Proposal, fail to publicly reaffirm the Board Recommendation within 10 Business Days after Parent so requests in writing, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within 10 Business Days after the commencement of such Acquisition Proposal on a Schedule TO or (bE) fail to include the Board Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Recommendation Change”); or (ii) cause or permit the Company or any of its Subsidiaries to enter into any Acquisition Agreement.
(f) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Required Company Stockholder Vote, the Company may effect a Recommendation Change if:
(i) the Company Board has received an Acquisition Proposal that has not been withdrawn and the Company Board concludes it determines in good faith (1after consultation with its independent financial advisors and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal and the failure to take such action would reasonably be expected to be a breach of its fiduciary duties, provided that (2A) after consultation with its outside counsel and financial advisors, that a Change in the Company Board Recommendation is necessary has not knowingly and intentionally violated, in order to comply with its fiduciary obligations; providedany material respect, howeverthe terms of Section 5.3, that no Change in (B) the Company Board Recommendation may be made shall have given Parent at least three (y3) until the fourth day after Parent’s receipt of Business Days’ prior written notice of its intention to take such action (a “Notice of Intended Change in the Company Board Recommendation”) from the Company advising Parent that the Company Board intends to make a Change in the Company Board Recommendation and specifying which notice shall specify the material terms and conditions of any such Superior Proposal) and, no later than the time of such notice, provided Parent a copy of the relevant proposed transaction agreement and other material documents with the party making such Superior Proposal, (C) if requested by Parent, the Company shall have negotiated in good faith with Parent during such three (3) Business Day notice period (so long as Parent and its Representatives are negotiating in good faith) to enable Parent to propose changes to the terms of this Agreement that would cause such Superior Proposal that is related to such Change in no longer constitute a Superior Proposal, (D) the Company Board Recommendation and (z) unless Parent has not proposed, within three days after its receipt of the Notice of Intended Change in the Company Board Recommendation, such adjustment to the terms and conditions of this Agreement as would enable the Company Board, acting shall have considered in good faith and (after consultation with its independent financial advisors and outside counsel and financial advisors, legal counsel) any changes to proceed with the Company Board Recommendation. Notwithstanding anything in this Agreement proposed by Parent in a written offer capable of acceptance and determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect, and (E) in the event of any material change to the contrary, disclosure by the Company of any Acquisition Proposal and the operation of this Agreement with respect thereto shall not be deemed to be a Change in the Company Board Recommendation. “Superior Proposal” means an Acquisition Proposal that the Company Board concludes, in good faith and after consultation with its outside counsel and financial advisors, is (I) reasonably capable of being completed, (II) reasonably capable of being fully financed and (III) more favorable to the holders of the Shares (in their capacity as stockholders) than the transactions provided for in this Agreement, taking into account, among or other things, the likelihood and timing of consummation, the termination fee payable under this Agreement to Parent in connection with the acceptance material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice and copies of the relevant proposed transaction agreement and other material documents and the three (3) Business Day notice period shall have recommenced; or
(ii) a material fact, event, change, development or set of circumstances that was not known by the Company Board as of or at any proposal time prior to the date of this Agreement (other than, and not relating in any way to, an Acquisition Proposal, it being understood and hereby agreed that the Company Board may only effect a Recommendation Change in response to or offer in connection with an Acquisition Proposal pursuant to and in accordance with Section 5.3(f)(i)) (such material fact, event, change, development or set of circumstances, an “Intervening Event”) shall have occurred and be continuing; provided that (A) the Company Board determines in good faith (after consultation with independent financial advisors and outside legal counsel) that the failure to take such action in light of the Intervening Event would reasonably be expected to be a breach of its fiduciary duties, (B) the Company shall have given Parent at least three (3) Business Days’ prior written notice of its intention to take such action and, no later than the time of such notice, provided Parent with a written explanation of the Company Board’s basis for proposing to effect such Recommendation Change, (C) if requested by Parent, the Company shall have negotiated in good faith with Parent during such three (3) Business Day notice period (so long as Parent and its Representatives are negotiating in good faith) to enable Parent to amend propose changes to the terms of this Agreement that would obviate the need for the Company Board to effect such Recommendation Change, (D) the Company Board shall have considered in good faith (after consultation with independent financial advisors and outside legal counsel) any changes to this Agreement proposed in writing by Parent and determined that the failure to take such action would reasonably be expected to be a breach of its fiduciary duties if such changes were to be given effect, and (E) in the event of any material change to the facts and circumstances relating to such Intervening Event, the Company shall have delivered to Parent an additional notice and the three (3) Business Day notice period shall have recommenced.
(g) Nothing contained in this Section 5.3 shall be deemed to prohibit the Company or the Company Board from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act, (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or (iii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with its fiduciary duties under applicable Law; provided, however, in no event shall the Company or the Company Board or any committee thereof take, agree or resolve to take any action prohibited by Section 5.3(e) (it being understood that neither any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company’s stockholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and such other factors deemed relevant by the Company Boardthis Agreement).
Appears in 1 contract
Solicitation of Acquisition Proposals. (a) Go-Shop Period. Notwithstanding any other provision of this Agreement anything to the contrarycontrary set forth in this Agreement, during the period beginning on commencing with the date execution and delivery of this Agreement and continuing until 11:59 pm 12:01 a.m. New York city time on February 26, 2021, (Eastern time) on the date that is twenty (20) calendar days from the date hereof (such date, the “No-Shop Period Start Date”), the Company, its Subsidiaries and their respective Representatives will have the right, acting pursuant to the direction of the Company and its Representatives may Board (or a committee thereof), to, directly or indirectly: , (i) initiate, solicit solicit, propose, induce or encourage the making or submission of Acquisition Proposals from one or more personsTakeover Proposals from any Person or its Representatives, or knowingly encourage or facilitate any proposal, inquiry or offer that would constitute, or would reasonably be expected to lead to, a Takeover Proposal, including by way of providing access furnishing to any Person or its Representatives any non-public information relating to the Company or any of its Subsidiaries or by affording to any Person or its Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company or any of its Subsidiaries, in each case pursuant to the prior execution of a confidentiality agreement not materially less restrictive of the other party than the confidentiality restrictions that the Parent is subject to one or more Acceptable Confidentiality Agreements; (ii) continue, enter into, participate in or engage in any discussions or negotiations with any Person or its Representatives with respect to the information provided by the Companyone or more Takeover Proposals or any other proposals that could lead to a Takeover Proposal; providedand (iii) otherwise cooperate with, assist or take any action to facilitate any Takeover Proposal or any other proposals that the could lead to a Takeover Proposal. The Company shall simultaneously provide will promptly (and in any event within 48 hours) make available to Parent or its Representatives any non-public information concerning the Company and its Subsidiaries that is provided to any such person Person or its Representatives which pursuant to this Section 5.04(a) that was not previously provided made available to Parent; and . On the No-Shop Period Start Date or promptly thereafter (iiand, in any event, within twenty-four (24) participate hours), the Company shall notify in discussions writing Parent of each Takeover Proposal (or negotiations regarding, and take any other action to facilitate any inquiries or the making of, any proposal inquiry that constitutes, or may could reasonably be expected to lead to an Acquisition a Takeover Proposal.
(b) Subject to the provisions of this Section 4.13, following the No-Shop Start Date, the Company shall immediately cease or cause to be terminated any activities that would otherwise be a violation of the restrictions set forth in this subsection (b) conducted theretofore by the Company or its Representatives with respect to any Acquisition Proposal; provided, however that notwithstanding such restrictions the Company may continue discussions or negotiations with any person pursuant to and in accordance with this Section 4.13 that has made an Acquisition Proposal on or received prior to the No-Shop Period Start Date if Date, which notice shall include (A) a copy of each such Takeover Proposal made in writing and any other written terms and proposals provided (including financing commitments) to the Company’s Board Company or its Representatives and a written summary of Directors determines material terms and conditions of each such Takeover Proposal not made in good faith writing and (B) a list of all Excluded Parties.
(b) No Solicitation or Negotiation after consultation No-Shop Period Start Date. Subject to Section 5.04(c) and Section 5.04(d), and other than with outside counsel respect to an Excluded Party and financial advisors) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal. Except as set forth in this Section 4.13its Representatives, on the No-Shop Period Start Date, the Company agrees that none of the Companywill (i) cease and cause to be terminated any discussions or negotiations with, any Person and its Representatives with respect to a Takeover Proposal, (ii) deliver a written notice to each Person to the effect that the Company Subsidiary is ending all discussions and negotiations with such Person with respect to any Takeover Proposal effective on and from the No-Shop Period Start Date and (iii) promptly (and in any event within three (3) Business Days after the No-Shop Period Start Date) (A) request each Person that has executed a confidentiality agreement in connection with its consideration of a Takeover Proposal to return or any of the officers and directors destroy all confidential information furnished to such Person by or on behalf of the Company and (B) withdraw or revoke access of any Person other than Parent (and its Representatives) and any Excluded Party (and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company Subsidiaries shalland its Subsidiaries. Subject to Section 5.04(c), during the period commencing with the No-Shop Period Start Date and continuing until the Effective Time, the Company will not, and that it shall will cause its Subsidiaries and their respective directors and executive officers not to, and the Company will not authorize or permit any of its or its Subsidiaries’ employees, agents and representatives (including any investment bankers, attorneys consultants or accountants retained by it or any Company Subsidiary) not other Representatives to, directly or indirectly, (1) solicit, initiate, solicit propose or take any action to knowingly facilitate induce the making, submission or encourage the submission of any inquiry, proposal or offer with respect to, or any transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving the Company or any Company Subsidiary, or any purchase or sale of the assets of the Company (including stock of the Company Subsidiaries), or any purchase or sale announcement of, or tender knowingly encourage, facilitate or exchange offer forassist, the Company’s equity securities (any such inquiry, proposal, offer proposal or transaction, an “Acquisition inquiry that constitutes a Takeover Proposal”), ; (2) have furnish to any discussion with Person (other than Parent, Merger Sub or provide or cause to be provided any of their respective designees) any non-public information relating to the Company or any of its Subsidiaries or afford to any person relating Person access to an Acquisition the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries (other than Parent, Merger Sub or any of their respective designees), in any such case in connection with any Takeover Proposal or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist with, any proposal or inquiry that constitutes, or would reasonably be expected to lead to, a Takeover Proposal; (3) participate, or engage in discussions or participate in negotiations, with any negotiations concerning an Acquisition Proposal, (3) approve, endorse or recommend, or propose publicly Person with respect to approve, endorse or recommend, any Acquisition a Takeover Proposal or with respect to any proposals or inquiries from third Persons relating to the making of a Takeover Proposal (other than only informing such Persons of the provisions contained in this Section 5.04); (4) approve, endorse or recommend, propose publicly to approve, endorse or recommendrecommend any proposal that constitutes, or execute or would reasonably be expected to lead to, a Takeover Proposal; (5) enter into, into any letter of intent, option agreement, agreement in principle, merger agreement, acquisition agreement or other similar Contract relating to a Takeover Proposal (any such merger agreement, acquisition agreement or agree other Contract relating to a Takeover Proposal, a “Company Acquisition Agreement”); (6) exempt any Person (other than Parent or its Affiliates) from any restrictions on “business combinations” contained in any applicable Takeover Statute or the Charter Documents of the Company; (7) waive or release any Person from, or forebear in the enforcement of, or amend any standstill agreement or any standstill provisions of any other Contract; or (8) authorize or commit to do any of the foregoing related to any Acquisition Proposalforegoing.
(c) Conduct Following the No-Shop Period Start Date. Notwithstanding anything to contrary in this Agreement to Section 5.04, from the contrary, prior to obtaining No-Shop Period Start Date until the Company’s receipt of the Requisite Company Stockholder ApprovalVote, the Company or and the Company Board may (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Company Financial Advisor), following the execution of an Acceptable Confidentiality Agreement, (i) participate or engage in discussions or negotiations with; (ii) furnish any non-public information relating to the Company or any of its Subsidiaries to; (iii) afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries; or (iv) otherwise facilitate the making of a Superior Proposal by, in each case, (A) any Excluded Party or its Representatives or (B) any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Takeover Proposal after the No-Shop Period Start Date that was not solicited in breach of Section 5.04(b), but only if the Company Board (or a committee thereof) has determined in good faith that (1) engage or participate in negotiations or discussions with, or provide or cause to be provided any information to, any person in response to an Acquisition Proposal that did not result from a breach of Sections 4.13(a) and 4.13(b) if (A) the Company’s Board concludes in good faith, after consultation with its financial advisors and outside counsel and financial advisorslegal counsel, that such Acquisition Takeover Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal and (B2) prior after consultation with outside legal counsel, the failure to providing any non-public information to any person in take the actions contemplated by this Section 5.04(c) would be inconsistent with its fiduciary duties under applicable Law. In connection with an Acquisition Proposal by any such personthe foregoing, the Company receives from such person an executed confidentiality agreement having provisions that are no less restrictive than the confidentiality obligations of the Parent with respect to the information provided by the Company; providedwill promptly (and, howeverin any event, that the Company shall promptly provide or within twenty-four (24) hours) make available to Parent any non-public information concerning the Company or any Company Subsidiary and its Subsidiaries that is provided to the person making any such Acquisition Proposal Excluded Party or its Representatives or such person’s representatives Person or its Representatives that was not previously provided or made available to Parent. Except as it may relate to an Excluded Party, the Company shall promptly (and in any event within twenty-four (24) hours thereof) notify in writing Parent of the receipt of any Takeover Proposal (or any inquiry that could reasonably be expected to lead to a Takeover Proposal) after the No-Shop Period Start Date, which notice shall include a copy of any such Takeover Proposal made in writing and any other written terms and proposals provided (including financing commitments) to the Company or its representativesRepresentatives and a written summary of material terms and conditions of any such Takeover Proposal not made in writing. Thereafter, the Company shall keep Parent reasonably informed of the status and material terms of any such Takeover Proposal including any material changes in respect of any such Takeover Proposal and the material terms thereof. The Company agrees that it will not enter into any agreement with any Person that prohibits the Company from providing any information or materials to Parent in accordance with, or otherwise complying with this Section 5.04(c). Notwithstanding anything to the contrary herein, the Company may grant a limited waiver, amendment or release under any confidentiality or standstill agreement to allow for a Takeover Proposal to be made to the Company or the Company Board so long as the Company promptly (and in any event within forty-eight (48) hours thereof) notifies Parent thereof after granting any such limited waiver, amendment or release (such limited waiver to include an express acknowledgment by the parties thereto that under no circumstances will such restricted Person(s) be permitted to acquire, directly or indirectly, any securities of the Company or any Company Subsidiaries prior to the valid termination of this Agreement in accordance with Article VII). For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 5.04(a) with respect to any Excluded Party, including with respect to any amended proposal or offer submitted by an Excluded Party following the No-Shop Period Start Date, and the restrictions in Section 5.04(b) will not apply with respect thereto. Nothing in this Section 5.04 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, including any "stop, look and listen" communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or (2ii) fail making any disclosure to make, withdraw, modify or qualify (or publicly propose to withdraw, modify or qualify) the stockholders of the Company Board Recommendation or approve or recommend (or publicly propose to approve or recommend) any Acquisition Proposal or letter of intent, agreement in principle, acquisition agreement or similar agreement providing for any Acquisition Proposal (a “Change in the Company Board Recommendation”) if the Company has complied in good faith with its obligations under Sections 4.13 (a) and 4.13(b), and if (a) the Company Board of Directors concludes in good faith, after consultation with its outside counsel and financial advisors, that a Change in the Company Board Recommendation is necessary in order to comply with its fiduciary obligations or (b) the Company has received an Acquisition Proposal that has not been withdrawn and the Company Board concludes in good faith (1) that such Acquisition Proposal constitutes a Superior Proposal and (2) after consultation with its outside counsel and financial advisors, that a Change in the Company Board Recommendation is necessary in order to comply with its fiduciary obligationsrequired by applicable Law; provided, however, that no Change in the Company Board shall not effect a Company Adverse Recommendation may be made Change except in accordance with Section 5.04(d).
(yd) until the fourth day after Parent’s receipt of written notice (a “Notice of Intended Change in Company Adverse Recommendation Change, Excluded Party Agreement or Company Acquisition Agreement; Parent Matching Right. Except as expressly permitted by this Section 5.04, the Company Board Recommendationshall not effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Excluded Party Agreement or Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) an Excluded Party Agreement or a Company Acquisition Agreement, if: (i) the Company Board determines in good faith, (1) after consulting with its legal, financial and any other advisor the Company Board chooses to consult, that any alternative transaction (including any modifications to the terms of this Agreement arising out of clause (v) below) proposed by Parent does not result in such Takeover Proposal ceasing to be a Superior Proposal, and (2) after receipt of advice from the Company’s outside legal counsel, that its failure to do so would reasonably likely be inconsistent with its fiduciary duties under applicable Law; (ii) the Company promptly notifies Parent, in writing, at least five (5) Business Days (the “Superior Proposal Notice Period”) from before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) an Excluded Party Agreement or a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company advising Parent has received a Takeover Proposal that the Company Board intends to make declare a Change in Superior Proposal and that the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to enter into an Excluded Party Agreement or Company Acquisition Agreement, provided that in the event of any change in the financial or other material terms of a Superior Proposal the Company shall deliver to Parent a new notice of such Superior Proposal the Superior Proposal Notice Period shall expire two (2) Business Days after the delivery of such new notice; (iii) the Company specifies the identity of the party making the Superior Proposal and specifying the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal; (iv) the Company and its Representatives during the Superior Proposal that is related Notice Period, negotiate with Parent in good faith to make such Change adjustments in the Company Board Recommendation and (z) unless Parent has not proposed, within three days after its receipt of the Notice of Intended Change in the Company Board Recommendation, such adjustment to the terms and conditions of this Agreement as would enable so that such Takeover Proposal ceases to constitute a Superior Proposal and the Merger may be effected, if Parent, in its discretion, proposes to make such adjustments; and (v) the Company Board, acting Board reaffirms in good faith and after consultation that such Takeover Proposal either continues to constitute a Superior Proposal or the failure to agree to such Takeover Proposal would be inconsistent with its outside counsel fiduciary duties, after taking into account any adjustments made by Parent during the Superior Proposal Notice Period in the terms and financial advisors, to proceed with the Company Board Recommendation. Notwithstanding anything in this Agreement to the contrary, disclosure by the Company of any Acquisition Proposal and the operation conditions of this Agreement with respect thereto shall not be deemed to be a Change in the Company Board Recommendation. “Superior Proposal” means an Acquisition Proposal that the Company Board concludes, in good faith and after consultation with its outside counsel and financial advisors, is (I) reasonably capable of being completed, (II) reasonably capable of being fully financed and (III) more favorable to the holders of the Shares (in their capacity as stockholders) than the transactions provided for in this Agreement, taking into account, among other things, the likelihood and timing of consummation, the termination fee payable under this Agreement to Parent in connection with the acceptance of such Superior Proposal, any proposal or offer by Parent to amend the terms of this Agreement and the Merger and such other factors deemed relevant by the Company Board.
Appears in 1 contract
Sources: Merger Agreement (Corning Natural Gas Holding Corp)