|SEVEN STARS CLOUD GROUP, INC. filed this Form 10-Q on 11/13/2017|
(b) Subject to Article 6.11(c), the Board of Directors or any member thereof shall not: (i) withdraw or modify the Board Recommendation in any way adverse to the Purchaser, or approve or put forward any proposal about withdrawal or amendment of the Board Recommendation in any way adverse to the Purchaser, or adopt any other act of open or secret disclosure, which may be constructed as disapproval of the Board of Directors or any member thereof on the agreement or doubt on the compliance of the agreement and Proposed Transaction are in the best interest of the shareholders; (ii) fail to reaffirm the Board Recommendation unconditionally or state openly that the agreement and the Proposed Transaction comply with the Company shareholders’ best interests unconditionally within five(5) Business Days after the written request about adoption of relevant acts put forward by the Purchaser; (iii) fail to declare publicly that the Board of Directors suggests refusing such acquisition or exchange offer within ten (10) Business Days after sending the tender offer or exchange offer related to the Company securities; (iv) fail to release the news for declaring the advice against such Acquisition Proposal within ten (10) Business Days after an announcement of any acquisition proposal; (v) approve, permit or recommend any Acquisition Proposal; or (vi) decide or plan to adopt any act specified by Items (i)-(v) above in the sentence (namely “Change in Recommendation”).
(c) Notwithstanding anything to the contrary contained in Article 6.11(b), the Board of Directors may, before shareholders vote for the agreement, change advice thereof or require the Company to effect a Change in Recommendation as the case may be:
(i) provided that (A) the Company receives one Acquistion Proposal for the trade defined by the word “ Superior Proposal” after the signing date of the Agreement, which hasn’t been withdrawn; (B) the unsolicited bona fid written offer is not received or given as a direct or indirect result of violating (failed compliance with) the Agreement, the Confidentiality Agreement, any “standstill” agreement or any other similar agreement where the Company or any Subsidiary enjoy any right or undertake any obligation; (C) the Company shall send a written notice to the Purchaser about the meeting date and duration, clauses, terms and conditions of the offer as the basis of acts taken by the Board of Directors (including one copy of the final agreement draft about the offer) as well as the offer or identity at least five (5) Business Days prior to the date for the Board of Directors meeting convoked by the board for determining whether the offer is a Superior Proposal; (D) the Board of Directors, after obtaining and considering advice of the independent financial counsel and foreign legal counsel, determines in good faith that the offer constitutes, or would reasonably be expected to lead to a Superior Proposal; (E) Within five(5) Business Days after the written notice received by the Purchaser from the Company for confirming that the Board of Directors considers the offer as a Superior Proposal, the Board of Directors doesn’t effect or cause the Company to effect a Change in Recommendation ; (F) Within such five (5)Business Days, as required by the Purchaser, the Company shall negotiate with the Purchaser in good faith for amending the Agreement to the extent that the offer which is deemed to a Superior Proposal originally fail to constitute Superior Proposal; (G) upon the end of such five(5) Business Day above, the offer isn’t withdrawn and still constitutes a Superior Proposal(after negotiation based on Item (F) or other clauses, taking the Purchaser’s change advice on provisions of the Agreement into consideration); (H) the Board of Directors, after obtaining and considering advice of the foreign legal counsel, determines in good faith that it’s necessary to change the Recommendation based on a Superior Proposal and make itself comply with the fiduciary duties for the Company shareholders subject to relevant laws (what needs to be grasped here is that if any provision of the better proposal changes, then Article 6.11(c)(i) shall be applicable to the offer after amendment as it is a new offer); or
(ii) Provided that (A) the situation has the major development or change before the signing date of the Agreement, which is unknown by and beyond the reasonable prediction of the Company, any Subsidiary thereof or any Representative thereof before the signing date of the Agreement (the major development or change of the situation is called as a “Intervening Event ”); (B) the Company shall send a written notice to the Purchaser ab out the meeting date and duration and clauses at least five (5) Business Days prior to the date for the Board of Directors meeting convoked by the board for determining whether it’s necessary to change its Recommendation or urge the Company to do the same due to the Intervening Event; (C) Within such five(5)Business Days, as required by the Purchaser, the Company shall negotiate with the Purchaser in good faith for amending the Agreement to the extent that the Board of Directors needn’t change its Recommendation or urge the Company to do the same because of the Intervening Event; and (D) the Board of Directors, after obtaining and considering advice of the foreign legal counsel, determines in good faith that it’s necessary to change the Recommendation based on the Intervening Event and make itself comply with the fiduciary duties for the Company shareholders subject to relevant laws.
6.12 Cooperation and submission of data to the supervision authority
(a) Each Party shall cooperate mutually and adopt (or urge to adopt) all acts needed for completing the Proposed Transaction through reasonable commercial efforts.
(b) The Company shall, subject to requirements of administrative orders, constitution, laws, rules, regulations, statute laws or treaties of any federation, state, region, municipal administration, foreign country, international, transnational or others, conduct and complete all major filings and notification needed for completing the Proposed Transaction, which include but not limited to the necessary fillings submitted to SEC; and shall submit promptly any additional data related to the Agreement and the Proposed Transaction, which is required to be submitted together with the filings and notification above. The Purchaser shall cooperate with the Company in any major filing related to the Proposed Transaction required by relevant laws.
6.13 Notices and other data to be submitted to CIFUS (if applicable)
In accordance with Article 721 of Defense Production Act in 1950 (including the revised versions), both Parties shall, for the Proposed Transaction, prepare and submit any voluntary notice (hereinafter referred to as “Voluntary Notices”) and any filing required later to CFIUS through reasonable commercial efforts. Both Parties shall provide promptly the other Party of the voluntary notice and all information needed upon answering any question of CFIUS or any other relevant governmental authority. Both Parties shall, through reasonable commercial efforts, adopt all necessary measures for obtaining the following conclusion of CFIUS as soon as possible if practical: the Proposed Transaction doesn’t include any national safety problem needed to be reviewed further. Both Parties shall inform the other Party promptly of any substantial notice and letter about the voluntary notice from any governmental authority or any Representative thereof. In addition, as required by one Party, the other Party shall provide promptly such Party with the state update of the voluntary notice.