Common use of Takeover Proposal Clause in Contracts

Takeover Proposal. Except as expressly permitted by this Section 5.04, the Company shall not, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ respective Representatives not to, during the Interim Period: (i) directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; (ii) engage in any negotiations or discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 5.04), or furnish any material non-public information to, any Person relating to a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal, or (iii) approve, recommend to enter into, or publicly propose to approve, recommend or enter into, any Company Acquisition Agreement (except for any Acceptable Confidentiality Agreement permitted under Section 5.04(c)). Promptly following the execution of this Agreement, the Company shall, and shall cause its Subsidiaries and shall cause its and their respective Representatives to, immediately cease any solicitations, discussions or negotiations ongoing at such time with any Person (other than Parent and its Affiliates) or its Representatives with respect to any Takeover Proposal and promptly terminate all data room access granted to any such Person or its Representatives and, to the extent not previously requested, promptly request the return or destruction by such Person that has received information or executed a confidentiality agreement at any time within twelve (12) months immediately preceding the date hereof in connection with any Takeover Proposal of all non-public information concerning the Company and its Subsidiaries.

Takeover Proposal. Except as expressly permitted by (a) Subject to the terms of this Section 5.045.2, from and after the Company shall not, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ respective Representatives not to, during the Interim Period: (i) directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; (ii) engage in any negotiations or discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 5.04), or furnish any material non-public information to, any Person relating to a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal, or (iii) approve, recommend to enter into, or publicly propose to approve, recommend or enter into, any Company Acquisition Agreement (except for any Acceptable Confidentiality Agreement permitted under Section 5.04(c)). Promptly following the execution date of this Agreement, the Company shall, and shall cause its Subsidiaries and shall cause its and their respective Representatives toofficers, immediately cease any solicitationsdirectors, discussions employees, investment bankers, attorneys, accountants, consultants or negotiations ongoing at such time with any Person other agents or advisors (other than Parent and its Affiliates) or its Representatives with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) to, cease any discussions or negotiations with any third party Person or its Representatives that may then be ongoing with respect to a Takeover Proposal and promptly shall (x) use its reasonable best efforts to have returned to the Company or destroyed any confidential information that has been provided in any such discussions or negotiations; (y) cease providing any further information with respect to the Company or any Takeover Proposal to any such Person or its Representatives; and (z) immediately terminate all data room access granted to any such Person or its Representatives andto any physical or electronic data room (or any other due diligence access). From and after the date of this Agreement, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or their Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal or (ii) participate in any discussions or negotiations regarding any Takeover Proposal; provided, however, that if, following the receipt of a Superior Proposal (as hereinafter defined) or a proposal which is reasonably expected to lead to a Superior Proposal that in either case was made (and not withdrawn) after the date of this Agreement and prior to the receipt of the Shareholder Approval, in circumstances not involving a breach of this Agreement, the Company Board determines in good faith, after considering applicable provisions of state Law and after consultation with outside counsel, that a failure to do so would be inconsistent with the fiduciary duties of directors under Pennsylvania Law, the Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(b) and Section 5.2(c), (A) request information from the Person making such Takeover Proposal for the sole purpose of the Company Board informing itself about the Takeover Proposal that has been made and the Person that made it, (B) furnish information with respect to the Company to the Person making such Takeover Proposal pursuant to an Acceptable Confidentiality Agreement; provided, that (1) such Acceptable Confidentiality Agreement may not include any provision calling for an exclusive right to negotiate with the Company and (2) the Company advises Parent of all such nonpublic information delivered to such person concurrently with its delivery to the requesting party (provided, further, that substantially concurrently such delivery, the Company delivers or makes available to Parent such nonpublic information that was not previously made available to Parent), and (C) participate in negotiations with such party regarding such Takeover Proposal. It is agreed that any violation of the restrictions set forth in the preceding sentence by any officer, director, employee, investment banker, attorney or other advisor or Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.2(a) by the Company. From and after the date of this Agreement, the Company agrees not to waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party relating to a potential or actual Takeover Proposal (unless the Company Board determines in good faith, after considering applicable provisions of applicable Law and after consultation with outside counsel, that enforcing or not waiving such provision would otherwise prevent a Takeover Proposal from being made to the Company). (b) Except as expressly permitted in this Section 5.2(b), neither the Company Board nor any committee thereof shall (i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Parent, the approval, determination of advisability or recommendation by the Company Board or such committee of this Agreement, the Merger or the other Transactions, (ii) approve, determine to be advisable or recommend, or propose publicly to approve, determine to be advisable or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) related to any Takeover Proposal (other than an Acceptable Confidentiality Agreement). Notwithstanding the foregoing, in the event that the Company Board determines in good faith, in response to a Superior Proposal that was made after the date hereof and prior to the receipt of the Shareholder Approval in circumstances not involving a breach of this Agreement, after considering applicable provisions of applicable Law and after consultation with outside counsel, that the failure to do so would be inconsistent with the fiduciary duties of directors under Pennsylvania Law, the Company Board may (subject to compliance with this sentence and to compliance with Section 5.2(a) and Section 5.2(c)) (x) withdraw or modify its approval, determination of advisability, or recommendation of this Agreement, the Merger, and the other Transactions or (y) approve, determine to be advisable, or recommend a Superior Proposal, or (z) cause the Company to enter into an Acquisition Agreement; provided, however, that any actions described in clause (x), (y) or (z) may be taken only (1) after the third (3rd) Business Day following Parent’s receipt of written notice from the Company advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal and providing notice of the determination of the Company Board of what actions described in clause (x), (y) or (z) the Company Board has determined to take, (2) if the Company has negotiated in good faith with Parent during such notice period, to the extent not previously requestedParent requests to negotiate, to enable Parent to propose revisions to the terms of this Agreement, (3) if, following the end of such notice period, the Company Board shall have considered in good faith any written revisions to the terms of this Agreement proposed by Parent, and shall have determined in good faith (after consultation with an independent financial advisor and receiving the advice of outside counsel) that the Superior Proposal would nevertheless continue to constitute a Superior Proposal if the revisions proposed by Parent were to be given effect, and (4) if in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (1) above of this proviso and a new notice period under clause (1) of this proviso shall commence during which time the Company shall be required to comply with the requirements of this Section 5.2(b) anew with respect to such additional notice pursuant to clauses (1) through (4) above of this proviso. (c) In addition to the obligations of the Company set forth in Section 5.2(a) and Section 5.2(b), the Company shall promptly (and in any event within twenty-four hours) advise Parent orally and in writing of any request the return or destruction by such Person that has received for confidential information or executed a confidentiality agreement at any time within twelve (12) months immediately preceding the date hereof in connection with a Takeover Proposal or of any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal and the identity of the person making such request or Takeover Proposal and shall keep Parent promptly advised of all non-public information concerning significant developments which could reasonably be expected to culminate in the Company Board withdrawing, modifying or amending its recommendation of this Agreement, the Merger and the other Transactions, or in exercising any of its Subsidiariesother rights under Section 5.2(a) or Section 5.2(b). (d) Nothing contained in this Section 5.2 or Section 6.6 shall prohibit the Company or the Company Board from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any other disclosure to the Company’s shareholders if, in the Company Board’s determination in good faith after consultation with outside counsel, the failure so to disclose would be inconsistent with its obligations under applicable Law; provided, however, that neither the Company nor the Company Board nor any committee thereof shall, except as in accordance with Section 5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination of advisability or recommendation of this Agreement, the Merger and the other Transactions or approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal.

Takeover Proposal. Except as expressly permitted by From and after the date of this Section 5.04Agreement, the Company agrees that (i) it and its officers, directors and employees shall, (ii) the Company Subsidiaries and their officers, directors, and employees shall, and (iii) it shall use its commercially reasonable efforts to ensure that its and the Company Subsidiaries' financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents (collectively, "Company Representatives"), immediately cease and cause to be terminated immediately all existing discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal. From and after the date of this Agreement, the Company shall not, nor shall it permit any of the Company Subsidiaries to, and it shall use its commercially reasonable efforts to cause its Subsidiaries and each of the Company’s and its Subsidiaries’ respective Company Representatives not to, during the Interim Period: to (i) directly or indirectly, solicit, initiateinitiate or knowingly encourage a Takeover Proposal, (ii) enter into any agreement or agreement in principle with respect to any Takeover Proposal, (iii) participate in any discussions or negotiations regarding, or knowingly take furnish or disclose to any action Person (other than a party to facilitate this Agreement) any information with respect to, a Takeover Proposal, or encourage (iv) other than as contemplated by this Agreement, grant any approval pursuant to Section ▇▇-▇▇▇-▇▇▇ of the submission of TBCA; provided, however, that, if at any time prior to Shareholder Approval: (A) the Company receives an unsolicited Takeover Proposal from a third party after the date hereof and (B) the Special Committee determines in good faith (after consultation with its financial advisors and legal counsel) that such Takeover Proposal constitutes or the making of any proposal that could reasonably be expected to lead to any Takeover a Superior Proposal; (ii) engage in any negotiations or discussions with (it being understood that then the Company may inform Persons of the provisions contained in may, subject to compliance with this Section 5.04)5.2, or (i) furnish any material non-public information to, any and/or draft agreements with respect to the Company to the Person relating making such Takeover Proposal (and its representatives) pursuant to a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal, or (iii) approve, recommend to enter into, or publicly propose to approve, recommend or enter into, any Company Acquisition confidentiality agreement which restricts such Person no less than Parent is then restricted by the Confidentiality Agreement (except for any Acceptable Confidentiality Agreement permitted such changes specifically necessary in order for the Company to be able to comply with its obligations under Section 5.04(c)). Promptly following the execution of this Agreement), provided that a copy of all such information that has not previously been delivered to Parent is delivered to Parent prior to or concurrently with the Company shalldelivery to such Person, and shall cause its Subsidiaries and shall cause its and their respective Representatives to, immediately cease any solicitations, (ii) participate in discussions or negotiations ongoing at with the Person making such time with any Person Takeover Proposal (other than Parent and its AffiliatesRepresentatives) regarding such Takeover Proposal. Notwithstanding the foregoing, during the period from the date of this Agreement through the Effective Time, (i) neither the Company nor any of Company Subsidiary shall terminate, amend, modify or its Representatives with respect waive any provision of any confidentiality or standstill agreement to any Takeover Proposal which it is a party and promptly terminate all data room access granted to any such Person or its Representatives and(ii) the Company shall enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including, but not previously requestedlimited to, promptly request seeking to obtain injunctions to prevent any breaches of such agreements and to enforce specifically the return or destruction by such Person that has received information or executed a confidentiality agreement at terms and provisions thereof in any time within twelve (12) months immediately preceding the date hereof in connection with any Takeover Proposal of all non-public information concerning the Company and its Subsidiariescourt having jurisdiction.

Takeover Proposal. Except as expressly permitted by From and after the date of this Section 5.04Agreement, the Company agrees that (i) it and its officers, directors and employees shall, (ii) the Company Subsidiaries and their officers, directors, and employees shall, and (iii) it shall use its best efforts to ensure that its and the Company Subsidiaries' financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents (collectively, "Company Representatives"), immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, any Takeover Proposal. From and after the date of this Agreement, the Company shall not, nor shall it permit any of the Company Subsidiaries to, and it shall use its best efforts to cause its Subsidiaries and each of the Company’s and its Subsidiaries’ respective Company Representatives not to, during the Interim Period: (i) directly or indirectly, (i) solicit, initiate, encourage or knowingly take facilitate (including by way of furnishing information) any action to facilitate inquiries or encourage the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, a Takeover Proposal Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal, (iii) participate in any discussions or negotiations regarding, or furnish or disclose to any person (other than a party to this Agreement) any information with respect to the Company, or otherwise cooperate in any way, in connection with any inquiries or the making of any proposal that could constitutes, or would reasonably be expected to lead to any Takeover Proposal; (ii) engage in any negotiations or discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 5.04), or furnish any material non-public information to, any Person relating to a Takeover Proposal or (iv) grant any inquiry approval pursuant to Section 203(a)(1) or proposal 203(a)(3) of the DGCL; provided, however, that, if at any time prior to the Stockholder Approval: (A) the Company receives an unsolicited Takeover Proposal from a third party (under circumstances in which the Company has complied with the foregoing provisions of this Section 5.2(a)); (B) the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal; (C) the Board of Directors of the Company determines in good faith (after consultation with outside counsel) that failure to do so would be a breach of its fiduciary duties under applicable law; and (D) the Company gives Parent and Merger Sub two Business Days prior written notice of the identity of such third party, the terms and conditions of such Takeover Proposal and the Company's intention to furnish information to, or participate in discussions or negotiations with the person making such Takeover Proposal, or then the Company may, subject to compliance with Section 5.2(a), (iiii) approve, recommend furnish information with respect to enter into, or publicly propose the Company Entities to approve, recommend or enter into, any Company Acquisition the person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement which includes "standstill" provisions and which restricts such person no less than Parent is then restricted by the Confidentiality Agreement (except for any Acceptable Confidentiality Agreement permitted such changes specifically necessary in order for the Company to be able to comply with its obligations under Section 5.04(c)). Promptly following the execution of this Agreement), the Company shallprovided that a copy of all such information that has not previously been delivered to Parent is delivered to Parent simultaneously with delivery to such person, and shall cause its Subsidiaries and shall cause its and their respective Representatives to, immediately cease any solicitations, (ii) participate in discussions or negotiations ongoing at with the person making such time with any Person Takeover Proposal (other than Parent and its Affiliatesrepresentatives) or its Representatives with respect to any regarding such Takeover Proposal and Proposal. The Company agrees that it will promptly terminate all data room access granted to any such Person or its Representatives and, to the extent not previously requested, promptly request the return or destruction by such Person that has received information or executed a confidentiality agreement at any time within twelve (12) months immediately preceding the date hereof in connection with any Takeover Proposal of all non-public information concerning inform the Company Subsidiaries and its Subsidiariesthe Company Representatives of the obligations undertaken in this Section 5.2(a).

Takeover Proposal. Except as expressly permitted by Subject to the terms of this Section 5.04, during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of (x) the valid termination of this Agreement or (y) the Effective Time, neither the Company nor any of its Subsidiaries shall, and the Company shall not, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ respective directors, officers and employees not to, and shall direct and use reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, during the Interim Perioddirectly or indirectly: (i) directly or indirectly, solicit, initiate, propose, knowingly induce, knowingly facilitate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal inquiries, proposals or offers that constitute or could reasonably be expected to lead to any a Takeover Proposal; Proposal (including by way of furnishing non-public information), (ii) engage enter into or participate in any discussions or negotiations or discussions respond to any inquiries with (it being understood that any third party for the Company may inform Persons purpose of the provisions contained in this Section 5.04)facilitating, inducing or furnish encouraging any material non-public information inquiry, proposal or offer with respect to, any Person relating to a Takeover Proposal that constitutes or any inquiry or proposal that would could reasonably be expected to lead to a Takeover Proposal, or (iii) furnish to any Person (other than Parent, Merger Sub or their respective designees) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, in any such case to induce the making, submission or announcement or to encourage or facilitate any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to a Takeover Proposal, (iv) approve, recommend to recommend, enter into, into or publicly propose to approve, recommend or enter intointo any agreement in principle, any Company Acquisition Agreement (except for any letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to a Takeover Proposal, other than an Acceptable Confidentiality Agreement permitted by this Section 5.04 (each, a “Company Acquisition Agreement”), or (v) grant any waiver, amendment or release under Section 5.04(c)any “Standstill” or confidentiality agreement or fail to enforce the terms of any such “standstill” or similar provision of any confidentiality (unless with respect to this clause (v) the Company Board has determined in good faith, after consultation with outside legal counsel, that failure to take such action would be a violation of the directors’ fiduciary duties under applicable Law, and if such action is so taken, shall provide a proportionate release, amendment or waiver under the standstill in the Confidentiality Agreement). Promptly following the execution of this Agreement, the The Company and its Subsidiaries shall, and the Company shall cause the Company’s and its Subsidiaries Subsidiaries’ Representatives to cease immediately and shall cause its to be immediately terminated any and their respective Representatives toall existing activities, immediately cease any solicitationsdiscussions, discussions or negotiations ongoing at such time negotiations, if any, with any Person (other than Parent and its Affiliates) or its Representatives third party conducted prior to the date hereof with respect to any Takeover Proposal or any inquiry, proposal or offer which constitutes or could reasonably be expected to lead to, a Takeover Proposal, and shall promptly terminate all data room access granted to request any such Person third party (or its Representatives andagents, to the extent not previously requestedrepresentatives or advisors, promptly request the return or destruction by such Person that has received information or executed a confidentiality agreement at any time within twelve (12including financing sources) months immediately preceding the date hereof in connection with any Takeover Proposal possession of all non-public information concerning in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its SubsidiariesSubsidiaries in connection with such third party’s consideration of a Takeover Proposal to return or destroy all such information and shall immediately shut off all access of any such third party (other than Parent, Merger Sub or their respective designees) to any electronic data room maintained by the Company or on its behalf. Notwithstanding the foregoing, at any time prior to obtaining the Requisite Company Vote, if the Company or any of the Representatives of the Company or its Subsidiaries has received a bona fide written Takeover Proposal from any third party that did not result from a breach of this Section 5.04, the Company and its Representatives may contact the third party making such Takeover Proposal to clarify any ambiguous terms and conditions of such Takeover Proposal (but not engage in negotiations or provide non-public information) solely to the extent necessary in order to determine if such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal or inform such Person of the existence of the provisions of this Section 5.04; provided, that, the Company otherwise complies with its obligations set forth in Section 5.04(c).